Originalist Smackdown: Healthcare Mandate Edition

In The New Republic, Harvard Law Professor Einer Elhauge delivers an awe-inspiring smackdown of the "originalist" case against the healthcare mandate:

But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

I have my own problems with Constitutional Originalism and its flawed theory of history, but this is just straight up pwning. Elhauge goes on to detail several instances in which actual Congresses made up of actual Founding Fathers passed mandates, including an individual mandate that required sailors to purchase medical insurance.

If such a ruling would not hurt so many millions of vulnerable Americans, I could almost wish that the Supreme Court would strike down the mandate just so that we could have this awesome example of "actual" Founding Fathers vs. "original" Founding Fathers. I may get that wish fulfilled anyway, much to my sorrow.

More coverage from Slate here.

Hymowitz Award Nomination

If you are a history teacher, chances are, you have read at least one essay that starts out with,

Throughout history, societies have . . .

Hopefully, you have crossed these words out and drawn some sort of frowny face before commenting on the inherent weakness of such grandiose statements. In a better world, the student writer would take this advice to heart and learn the joys of being specific. In the actual world, he will go on to write an opinion piece for the New York Times.

In today's NYT, Professor Joel Bakan informs us that "there is reason to believe that childhood itself is now in crisis." Oh noes! What with the gadgets and the sugar and whatnot, the apocalypse is surely upon us.

Look, I'm sure that Professor Bakan actually has some interesting things to say about the purported subject of his essay — the conflict between corporate rights and children's rights at the end of a century of enormous changes in the laws that govern both American corporations and American children. Too bad that's not the essay that made it into the NYT.

Instead of an insightful consideration of who benefits from these specific legal developments, we get an awful lot of fuzzy, a-historical pearl clutching. I have no doubt that poor regulations expose children to harmful chemicals. But is it actually true that, "children today are being exposed to increasing quantities of toxic chemicals"? Like, more than when they worked in tanneries? Or when lead paint and plumbing were still big? Is the risk of toxic chemical exposure really increasing relative to the pre-Superfund era?

Prof. Bakan does raise some tepidly interesting points about over-medication, but the whole piece is just terribly framed. I swear, when I read, "Throughout history, societies have struggled with how to deal with children," my eyes rolled of their own accord. It doesn't help that the whole first paragraph is a standard-issue "it feels like something is wrong" when the kids these days get all mesmerized by their beep-beep-boop-de-boop. Bakan offers a brief nod to the idea that his own parents' generation was likely just as concerned about The Rock and Roll as he is about The Internetz, but he glosses over that quickly, assuring readers that, "the issues confronting parents today can’t be dismissed as mere generational prejudices."

Where have I seen this before?

The wise Man doth justly condemn the folly of those, that are always saying and complaining, what is the cause that the former dayes were better than these? . . . Such complaints often proceeding from Ignorance in History, or non-observation of the vices in those of former, and virtues in some of the present Generation . . . All this not withstanding, some Times are more corrupt, dark, and miserable than can be said of all . . . Yea, the dreggs of those times are now at hand.

That's Increase Mather, on the case in 1679, in his "Call from Heaven," a pamphlet on the raising of godly children.



The Hymowitz Award is awarded for misuses of history in jeremiads.

James Arcene

Check out my guest post about James Arcene over at Executed Today.

Does the Historian's Hat Fit the Associate Justice's Head?

Like many Americans, I find the news that the Taliban has executed a seven-year-old boy to be deeply sickening. Reaction from world leaders has been fairly predictable — those who have commented on the case use it as an example of the unfathomable cruelty and depravity of the Taliban:

Afghan president Hamid Karzai:

"hanging or shooting to kill a 7-year-old boy . . . is a crime against humanity"

British Prime Minister David Cameron:

"If this is true, it is an absolutely horrific crime . . . If true, I think it says more about the Taliban than any book, than any article, than any speech could ever say."

When I read this story, I immediately thought back to Justice Thomas' recent dissent in Graham v. Florida, in which he argued that the Eighth Amendment should be understood to prohibit "methods [of punishment] akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted." In a footnote to that dissent, Justice Thomas argued that the Founding Fathers would not have considered sentencing a juvenile offender to life in prison without parole "cruel and unusual" because the common law "theoretically permitted [even] capital punishment to be imposed on a person as young as age 7,” reasoning that "It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards."

Did you notice the sleight of hand?

Go, Nancy!

Today, Professor Nancy Cott will use her expertise as an historian of marriage in America to testify for marriage equality in Perry v. Schwarzenegger.

As someone who has personally cowered under the withering gaze of the formidabe Prof. Cott, I extend my sympathies to the attorney who will have to cross-examine her. I'm sure the anti-Prop 8 legal team chose her for her world-class expertise, but it's her presence that will make her an amazing witness. For someone who is barely 5 feet tall, she can be incredibly intimidating — she has this way of smiling that conveys her infinite patience for your mindboggling stupidity.

If the reports about pro-Prop 8 lawyer Charles Cooper's opening statement are correct, he'll be seeing a lot of that smile.

Speaking of Civil War Names . . .

. . . is Senator Jefferson Beauregard Sessions III (R-AL) named for Jefferson Davis and P.G.T. Beauregard?*

I ponder this question as I watch the man confess a shocking ignorance of the history of American law while on national television.

In case you haven't been watching Judge Sotomayor's confirmation hearings, I will summarize Senator Sessions' remarks:

White men are neutral. Everyone else is prejudiced. The application of American law was TOTALLY NEUTRAL AND OBJECTIVE before women, people of color, queers, and their allies started messing everything up.

I watch CNN at the gym, but I had to turn it off this morning. I really could not stand to hear Senators Sessions and Grassley accuse Judge Sotomayor of "activism" in the Ricci case when her ruling was based on precedent and law while Justices Scalia and Alito created a new standard in order to satisfy their political imperatives and bent over backwards to ally themselves with a lawsuit-happy fellow Italian-American. I'm certainly no constitutional originalist (no is, no one can be, no one should be). I just could not stand to see those smug idiots display their prejudices so baldly while simultaneously claiming to be "objective."

They live in a fantasy world, where our national aspirations have already been wholly fufilled. Sometimes I wonder why I bother to study American history, but now I know — so I can laugh in the face of anyone who says that the history of American law is a history of objective decisions rendered by impartial marble men.

Senators Sessions and Grassley (and others, I'm sure — I just didn't watch that that far) have criticized Judge Sotomayor for saying that her experiences and her individual perspective will undoubtedly color her rulings. Of course they will. Just as Justice Scalia's color his. Just as Senator Sessions' color his questions. Are they against introspection? Reflection? Acknowledgment of the inescapability of bias?

What a disgusting display of willful, partisan, racist, historically-illiterate ignorance.

*To be clear, he'd be an asshat whatever his parents named him — I just have Confederate names on the brain.

Hannah Sabin of Windham, CT

Here's another example of "widow and relict," which is an example of a "legal lexical doublet" (thanks for the suggestion, RJO). Briefly, a legal lexical doublet is the use of two synonyms — one from Old English and one from Old French — in a legal context. This is an artifact of efforts to span the transition from French to English as the official language of law in the 15th century. Examples include "widow and relict," "goods and chattels," "will and testament," etc.

Hannah Sabin, Windham Center, CT, 1757

carved by Gershom Bartlett

Executed Today

The first of my two guest posts is up at Executed Today!

Today: Hannah Ocuish, Connecticut, 1786

Tomorrow: Celia, a slave, Missouri, 1855

Governmental Protection

On Sunday, I got into a heated discussion with my dad over this article.
A brief outline: Arelia Taveras, a lawyer from New York, is suing several Atlantic City Casinos, claiming that they should have noticed that she had a gambling addiction and cut her off when it became apparent that she was playing for days at a time without leaving the tables to shower, eat, or sleep. In all, she lost about $1,000,000 and embezzled money from her clients in order to continue gambling. She was disbarred and has to pay back the money she stole, as well as $58,000 in taxes, etc.

My dad's point was that people sue for many reasons, but "a quick buck" is not really one of them. Lawsuits are drawn-out, costly, and there is a very small chance of actually getting any money in the end. Rather, many suits, such as the infamous McDonald's coffee cup case, are useful for getting industry to reform when government has not imposed specific regulations. Congress may not spend much time on regulating the temperature of fast food coffee, but Stella Liebeck's suit spurred the industry's self-regulation, and now they no longer serve drinks that are capable of causing third-degree burns. Even when the industry does not regulate itself, civil suits often start the ball rolling on public opinion and eventual legislation, as with the suits against cigarette companies. Those plaintiffs rarely win, but they give the issue an airing in court and force judges and juries to rule on the evidence and suggest areas for possible regulation.

I agree with these points. There is no need for massive tort reform. Most rubbish suits get thrown out, as they should. It is vitally important that consumers and citizens be able to bring civil litigation when they are injured by corporations because withholding your business, while noble, doesn't do very much. You're still going to lose because the corporation has so many lawyers and so many resources, but, with luck, your issue will get some attention and a state legislator in Vermont or Oregon will make your concern into a bill, and in 100 years, everyone will be incredulous when they hear that in 2008, it was perfectly legal to let children ride on the schoolbus without a seatbelt.

But there is another issue that I couldn't get my dad to acknowledge. In part, I am writing this post because I've been thinking about it a lot and maybe I can be a bit more articulate now.

The issue I have is that I believe that government regulation has to be primarily about providing access to information and choice, but then not restricting those choices. This is where I differ from my dad. He thinks it would be perfectly ok to make cigarettes illegal full-stop. I don't think so. I do think that cigarettes should come with pictures of diseased lungs on the pack, a red-letter warning marking them as addictive should be on a tape you have to break to open the pack, you should have to be 21 to buy them, they should cost $10.00 in school-supporting taxes, and you should not be able to smoke in a place where other people (including waitresses and bartenders) might be exposed to your second-hand smoke. Arrest anyone who gives/sells tobacco to a minor, by all means. But if all the information is available to you, and you still decide to smoke, I don't think that the government can tell you that you can't. The same goes for marijuana.

What I am saying is that the government has a responsibility to protect you by ensuring that you have information and access to alternatives, but it cannot protect you from your choices, even if those choices are self-destructive.

(Caveat: This is often an unrealistic standard. Even if you have all of the information in the world, corporations will find a way to use their money and power to screw you over. In fact "all information" should probably be amended to "the best and relevant information" because a deluge of useless and confusing information can be just as bad as no information at all. Even more problematic is the question of access to alternatives. Even if you know you should be eating lots of fresh fruits and vegetables, if you live in a neighborhood where access to fresh food is restricted or you can't afford to buy fresh foods, you are not really making a free choice. Lack of access is the same as coercion.)

One of the reasons I believe this is that the government's "protection" is often no protection at all, especially when the bodies that they are "protecting" are female or belong to people of color.

A good example is coerced cesareans. I'm not talking about women who are pressured by their doctors and insurance companies to have c-sections — I'm talking about kicking, screaming women being strapped down and cut open by court orders. If the government decides that a doctor knows better, even if he/she is violating your religious principles or going to extraordinary lengths to "save" the life of your 22-week-old fetus, the fact that you don't want to have your body cut open becomes irrelevant.

Remember Angela Carder, the woman who was killed by a court-ordered cesarean in 1987? Carder was pregnant when she found out that she had cancer. She asked to be treated for her cancer, even though the chemotherapy might have hurt her 26-week-old fetus. The hospital decided that they wanted to do an emergency cesarean at 26 weeks, even though Angela was weak and sick and dead-set against it. The hospital got a court order to perform the cesarean. The baby lived 2 hours, Angela lived for 2 days.

The ACLU tells the rest of the story:

Court-ordered c-sections are a particularly egregious abuse of state authority because this surgery tends to be carried out on society's most vulnerable, powerless women. In 1987 the New England Journal of Medicine published a study of court-ordered c-sections that revealed that 81 percent of the patients were low-income women of color.

These are women who have all the information they need in order to make a good decision. They are not stupid, they are not evil, and they are not cackling witches who want their babies to die. In fact, they have more information than the government does: they know their own religious convictions and they may have a different way of looking at their lives and the lives of their families. Where the government sees "live mother," a woman may see "mutilated me." Where the government sees "live baby," a woman may see "severely disabled child in perpetual pain." The evil is in restricting the free choice, whether a corporation is restricting your free choice by manipulation or the government is restricting free choice more directly.

There are tricky scenarios. Do I think heroin should be legalized? I guess it comes down to whether heroin users are making a free choice. Addiction is a form of coercion, so I'd say they aren't, and that the government can ban a substance that is clearly addictive to most of the people who use it. The difference between the heroin addict and the gambling addict is just a matter of degree: heroin is addictive to almost everyone who uses it, and people who aren't addicted don't use it. There are plenty of people who can gamble without becoming addicted, so there is a less compelling case for a comprehensive ban.

It's not all blood and guts, though. What about me? I am of that fought-over species, the "woman of child bearing age." There may be evidence that tuna and other large fish contain an unhealthy amount of mercury, which can be stored in the body and possibly cause birth defects. Should the government prevent me from eating sushi? Or should they provide me with this information and trust me to be an adult and make an informed choice for myself? I don't mean to be dramatic, but it is incredibly insulting to be told by the government that I should consider myself as perpetually "pre-pregnant." It would be even worse if they decided to protect me from myself and ban me from all Japanese restaurants.

What about the bill recently introduced into the Mississippi state legislature that would prohibit restaurants from serving obese people? Clearly, this has zero chance of passing, but it's an interesting question: can the government protect you from your choices, even if those choices are bad for you?* Again, I'm all for choice: require that restaurants put the calorie counts right on the menu. Make McDonalds give a bajillion dollars per year to Jump Rope for Heart. If a restaurant's business practices are unnecessarily harmful — using harmful ingredients when they could be using healthier ingredients, restricting access to healthy food in low-income neighborhoods, etc. — nail the bastards. But don't put a judge between me and the onion rings. I have the right to hurt myself as long as I know what I'm getting myself into.

So back to the gambling suit. I say, post the odds of winning on every game, let gambling addicts voluntarily ban themselves from casinos (the casinos already do this), provide information about gambling addiction, hell, require that every casino keep a team of behavioral scientists on staff to monitor behavior on the floor and identify potential problem gamblers. But don't make gambling illegal. And if people are offered information and help and choose not to take it, don't hold the casino accountable. The government doesn't always know best, and it has to respect choices when those choices are made freely, even if the choice seems like a poor one. If the government holds the casino responsible for Taveras' gambling problem, they are restricting her personal choice and denying her personal responsibility. Maybe that's not so bad in this case, but what about when the government restricts other personal choices? If she can prove that gambling really is like heroin, or at least get people to start down that mental path, fine. But the people must always be wary of the government trying to protect them too much, especially while the people who govern are drawn from such a small group of the governed.

As for the original question: should Arelia Taveras be allowed to bring this suit against the casinos? Of course she should. If it were meritless, the judge would have tossed it out in short order. Just because she has very little chance of winning doesn't mean it won't do some good.

Also, how nerdy is it that my dad and I argue about torts?

*Clearly, eating is not bad for you. The gambling addict doesn't have to go to the casino, but everybody has to eat. Are fat people supposed to go cold turkey and just live off their fat reserves until they reach a socially-acceptable weight?