OK, I take it back. I’ve read the oral argument transcript now, and I see why Scalia won’t uphold PACA. The reasoning behind my prior post was that in Gonzales v. Raich, Scalia had invoked the Necessary and Proper Clause to uphold federal power to regulate medical marijuana, and between that and his jurisprudential assumptions (deference and restraint, popular sovereignty) he do the same thing here. Apparently not. As he explains in his “question,” he differentiates this case from that one on the grounds that the individual mandate is Necessary, but not Proper. Its impropriety is due to the fact that by affirmatively ordering a purchase under the Commerce Clause, it makes the Commerce power effectively limitless, and that conflicts with our basic constitutional scheme of limited government.
I’m not sure I buy this argument. It seems to depend on viewing the mandate in abstraction from its context in the overall reform scheme. Congress is not simply requiring people to purchase insurance because that’s nice for insurance companies who are going through tough times due to rising costs from independent market forces. The rising costs are simultaneously imposed by the very same statute. The mandate is a means of implementing the access provisions. The access provisions regulate insurers, who sell insurance, which already exists, that is the principal means in our society for obtaining health care, which already exists. The question is whether one views the reform as a comprehensive scheme, or as an aggregate of disconnected provisions with various effects. The question is not whether it is Proper for Congress to assume the authority to command any activity it chooses under the pretext of regulating non-existent Commerce. The question is whether it is Proper for Congress to regulate already existing Commerce in health care and health care insurance, and if the comprehensive scheme which contains both access and mandate provisions is Necessary (reasonably adapted) to that end.
One last point: how can you tell who’s right about this Necessary and Proper business, me or Scalia? I don’t know. It sounds like a tremendously vague standard. The idea of invalidating something because it strikes you as Improper sounds an awful lot like substituting one’s own values for a careful textual interpretation of original meaning. If we go there, that means that something very fundamental has truly shifted in at least one “conservative’s” thought: a particular vision of how American society should be, a vision we do not all share and presuppose, will have replaced close reading, popular sovereignty, separation of powers and judicial restraint. That we should see such a shift in Scalia seems only to confirm Nietzsche’s epigram: when you look long into an abyss, the abyss also looks into you.
The U. S. Supreme Court will hold that the health insurance individual mandate is constitutional. The swing vote will be Justice Antonin Scalia. That is all.
I am filled with Freudian Meditations on politics this morning, after a fraught re-acquaintance with that madman, Norman O. Brown and his astonishing psychoanalytic countercultural manifesto Life Against Death. I felt my long submerged conservative side in me rebel when his attempt to provide a psychoanalytic account of Marxian unalienated labor led him inexorably to the oral stage as the model of the perfect human condition. Conservatives always suspected that the cry against alienated labor was, in certain mouths, a hunger for a free lunch. Before one can meaningfully cry against alienated labor, one needs to do some.
Ambivalence about power would be the natural outcome of being a member of a species which involves being, first, a dependent, frustrated child, and later a harried, put-upon and ultimately rebelled against and rejected parent. Ambivalence about power strikes me as healthy, and reasonable, and some of us lean toward recognition of its unavoidability and some of us lean toward a concern with its abuse, depending upon the character of our experiences and sensitivities.
So why is it that I experience politics today the way that I do? Why is that I (like Sullivan) find so little conservatism in today’s conservatives? It isn’t merely that to accomplish its goals, it must uproot so much. The key lies in the tone. Modern conservatives are really angry. What is more, they celebrate their entitlement to be angry. The recent silliness with Limbaugh illustrates the fundamentally transgressive character of today’s conservatism. But isn’t anger ultimately the desire to punish? And isn’t the desire to punish born of identification with authority? I don’t know. Ask yourself. How many parents tell their children that they hope that someday they will grow up to be foul-mouthed and intemperate, like themselves?
No. The transgressive, guilt-refusing character of today’s conservatism (hence the popularity of Ayn Rand among supposed “Christians”) reveals that all the players in our current political world are playing child roles. The grown-ups have left the building. The key difference is one side is frustrated with their parents and the other is frustrated by siblings. (If you’re not frustrated with someone politics is the most boring form of entertainment ever.)
The realization that the more extreme forms of conservatism are tainted with sibling rivalry explains a whole bunch of things, including my intuition that the more extreme form of conservatism isn’t “conservative” at all. It needs radical changes, and big government, the better to punish with (and here is the deepest root of today’s utterly unconservative “neoconservative” foreign policy agenda). It is the cry of unfairness and the demand that dad beat the crap out of your little brother, who has tormented you enough (ever notice how little brother always lies to the IAEA and its nuclear inspectors and always gets away with everything?). The progressive petulant demand for an eternal breast under the guise of “meaningful work” seems utterly benign by comparison.