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On the Individual Mandate, Part Three: Is It Interstate Commerce?

The last two days I have discussed the Obamacare Supreme Court case in terms of what the Supreme Court will do.  This is all reading tea leaves, of course, and what authority have I to think I read them right?  Well, if you’re reading this, I guess it’s because you accept my authority.  (Thank you Hypatia and Aloysius!)

Today, rather than saying what I think the Court will do, I’ll take a stab at what they should do.

First of all, against Kennedy (the libertarian) and the liberals (the utopianists), I support the rule of law.  I think we need to abide by the text of the Constitution, or change it.  I could say much more about the complications of stare decisis, and the expansive way the Constitution is sometimes read, but for now, I think it suffices to say I think the only real question is whether the Obamacare mandate can be described as part of Congress’s power “to regulate commerce between the seveal States.”

So: is health care interstate commerce?  On first glance, I would say obviously not.  I take my children to their doctor in the next county over in our state.  That transaction is not interstate commerce, anymore than the decision to buy bread from the baker down the street.

Sometimes we go to see doctors in New York, across state lines.  But even that, I think, is not commerce among the several States.  I’m getting into hazier territory here.  But I can take a stab.  Article nine, on the limits of Congress, talks about States passing tarrifs on interstate Commerce, or Congress preferencing one State’s ports over another.  The original meaning of interstate commerce would seem to be questions of what happens at state borders: the federal government can search for contraband in a car crossing state borders, but a state government cannot. 

Take raw milk, a current issue.  New Jersey has a law that you cannot sell unpasteurized milk.  Pennsylvania does not have such a law.  It would seem to me that the point about regulating commerce among the States is to say that New Jersey has the right to make laws about commece within New Jersey; the federal governmnet does not.  What I buy within New Jersey is none of Congress’s business, so Congress can neither outlaw nor legalize raw milk sales within the state. 

But if I go to Pennyslvania to buy raw milk (as some people do), then it gets complicated.  Pennyslvania has the right to legalize or outlaw those sales within Pennyslvania borders.  New Jersey still has the right to say that I cannot sell that milk in New Jersey; it may have the right to say I cannot drink raw milk within New Jersey (that would involve other issues, both in New Jersey’s Constitution and perhaps in the Fourteenth Amendment); and New Jersey can even pass a law saying I can’t carry raw milk over the border.  But Congress has the right to intervene, trumping New Jersey’s law and saying that I either do or do not have the right to buy things in Pennyslvania for consumption in New Jersey.  Since this is interstate commerce, Congress has a right to make regulations, pro or con.

As interstate commerce got more complicated, so did interstate commerce laws.  In the late-nineteenth century, Congress passed anti-trust laws.  Railroads are, for the most part, of their very essence matters of interstate commerce.  A company whose whole raison d’être is to transport things across state lines is subject to Congress.  A railroad wholly within New Jersey is none of Congress’s business.  But when it goes across state lines, Congress can say that this company needs to abide by the rules of companies that participate in interstate commerce.

Next Congress got involved in the meat packing industry.  The stockyards in Chicago are doing a discrete task: chopping up animals and shipping them off.  And to that extent, they are only under Illinois state law.  But they are shipping that meat off to other states yet.  Congress can say, you can do whatever you want with animals within your state, but we pass laws saying that you can’t ship them east across the Indiana border if they are a contraband product by Congressional law.  If Congress says that meat crossing state lines cannot participate in certain business practices (like price fixing) so be it.

Later comes the truly absurd claim that if a farmer produces corn for his own cows, because he could have bought that corn from someone in another state instead, Congress can stop him.  That is absurd.  I guess it does produce a precedent the Court has to think about, making my Scalia-rather-than-Thomas argument difficult.  But . . . well, for now, let me ignore that.  Let’s stipulate that regulating interstate commerce means Congress has a right to pass laws about products that cross state lines.

Now, modernity makes this complicated.   When I take my kids to the doctor in Oradell, we are paying the doctor for a service, and we are not crossing state lines.  So far, not interstate commerce.  But what about when he gives them a shot from a factory in Pennsylvania?  At first it seems reasonable to say that Congress could say, do whatever you want with your doctor.  But if he’s going to give you a shot made in a different state, here are the conditions: he must also give you all the other shots we think are appropriate, he must have the federal licensing we think appropriate, etc. 

But how far does this go?  If he uses rubber gloves made in China, does my doctor visit now become “commerce with Foreign nations”?  What if his lab jacket is from Argentina?  Or his shoes from Italy?  At some point we draw a line. 

Take the rubber gloves.  It seems reasonable for Congress to pass laws about the import of rubber gloves: to put a tarriff on them, maybe even to check that they are not carrying rubber-glove-borne diseases(?!)  But at some point, Congress has to settle down.  In the eighteenth century, eating in an Inn built with nails from another state would not, I’m pretty sure, be construed as interstate commerce, even though those nails are absolutely essential to the Inn. 

We might recognize that Interstate Cartels are an example of interstate commerce; but that does not mean that everything remotely involving things that have crossed state lines is interstate commerce.  When the New Jeresy doctor buys vaccines from Pennsylvania, that is interstate commerce, and Congress probably has the right to ask whether he’s the kind of person who is allowed to purchase appropriately regulated medicines across state lines.  But when the New Jersey doctor gives vaccines to New Jersey kids, that isn’t interstate commerce.

Interesting to note, by the way, that when it came to the Chicago slaughterhouses, the application of Interstate Commerce law was NOT to say that because the pigs crossed state lines, you could dictate how they were fed before they crossed the lines.  What Congress regulated was the business practices – price-fixing – which were of themselves interstate acts: people in Chicago setting prices in New York.

What about our doctor visits in New York?  I don’t think it’s interstate commerce for me to buy a hot dog in New York.  And I don’t think it’s interstate commerce for me to get medical care in New York.  It is not interstate commerce for me to get a prescription in New York, or to fill it in New York.  But if I bring the prescription or the pills over the border?  Then, perhaps, New Jersey has a right to question whether such a presctiption is allowed here – and Congress has the right to override New Jersey’s decision in either direction. 

Which brings us to insurance.  Even if health care itself is not interstate, insurance might be.  I definitely think that the power to regulate interstate commerce means that Congress has the right to say that I can buy insurance from a provider in Pennyslvania.  This is precisely the original purpose of Congress’s right to regulate interstate commerce – to be able to override New Jersey if it tells me I can’t buy things in Pennyslvania.  Though if I buy insurance from a company (or branch of a company) operating exclusively within New Jersey, and everyone in the pool is in New Jersey (which is, I think, the way it works now), that is not interstate commerce, and Congress does not have the right to regulate it.

But what if I use my insurance here to pay a doctor in New York?  That seems to be crossing state lines.  And so there, perhaps, New York has a right to say we don’t deal with that kind of insurance company, and Congress has a right to override them.  They can, at the least, require New York to let my doctor receive payment from my New Jersey insurance company – or my Pennsylvania insurance company, for that matter.  Or they could say that interstate insurance companies can’t work that way.

My conclusion, then, would seem to be that if Congress wants to make things difficult for me, they could prevent me from using my insurance to go to a specialist in New York.  But it’s hard to see why.  This is not about preserving health, not the great big noble purpose Obamacare sets out to pursue.  The goal of helping health can happen entirely within state lines.  The only place Congress needs to intervene is to make sure that I can get medical care – including, perhaps, more affordable insurance – across state lines.

But forcing me to buy insurance?  Even granted that everyone needs insurance (which I do not grant) and that government has a fundamental interest in the health of every individual (which I grant only in part), it’s not clear to me that there’s anything fundamentally inter-state about health care or health insurance.

On the Individual Mandate, Part Two: The Uniqueness of the Issue

Yesterday, I argued that based on their jurisprudence, the Court will strike down the Obamacare mandate 5-4.  Today, some further predictions about the Court’s actions, based on the uniqueness of this particular case.

First, the uniqueness of health care. The Obama Administration makes a very valuable point.  The Justices are concerned about one central question: if the federal government can compel individuals to buy health insurance, is there anything they cannot compel you to buy?  The slightly humorous hypothetical example was broccoli.  Could Congress pass a law mandating that I buy broccoli?  Since nobody thinks they should be able to do that, key to the Obama argument is that health insurance is unique.

More about this tomorrow, but the argument – correct, I think – is that health insurance is unique, and thus uniquely subject to Congressional legislation, because (a) everyone can get sick, (b) you never know when you’ll get sick, and (c) the country recognizes an obligation to keep people alive and well. 

Sometimes libertarians make comparisons between health insurance and auto insurance.  But the huge difference is that if your car dies, it’s just a car.  The Obama Administration rightly argues that we feel a weightier obligation not to let people die; and health insurance (or some kind of safety net) of some kind is central because you never know who’s going to get sick next.  Therefore, says the Obama Administration, one needn’t worry that this Congressional intrusion in individual liberty is limitless.  We can draw a very clear line between Congress’s right to compel you to buy health insurance and a right to make you buy anything else.

That’s a good argument.  But I don’t think it will convince Kennedy.  The reason is that health is such a universal kind of thing.  At first glance, it seems that health is a limited good – Congress intervenes on this one thing, but on nothing else.  But then you realize that almost everything in life involves health.  Broccoli moves from being a silly example (eating broccoli a meaningless action that many people don’t want to take) to actually a very good example (broccoli as arguably important to your health). 

If Congress has the right to make sure you are taking care of your health, Congress has the right to ask if you’re getting enough sleep, exercising, engaging in risky behavior, consuming good or bad foods, minding your posture, or causing yourself unnecessary stress.  If Congress can compel you to watch out for your health, Congress could argue that yoga, tai chi, and meditation are good for your health, and issue a mandate for those.  The Court cannot intervene by disagreeing on the concrete judgment that meditation is good for your health; if it agrees that everything to preserve health is fair game for Congress, it has to allow these things.

The line is actually quite blurry, because health, precisely because it’s important as outlined by the Obama Administration, ends up being a limitless case.  What makes health care unique is precisely what makes it limitless.  Thus Kennedy (I authoritatively predict!) will vote against the insurance mandate.

The last consideration of the Court’s decision is the issue of “severability”: IF the Court strikes down the individual insurance mandate, can the rest of the law stand?  The Court is said to have a “presumption of severability”: that is, unless proven otherwise, the Court assumes that it can strike down one part of a law, and leave everything else in place.  But the question is whether it’s leaving the rest in place if it strikes down this point.  That is, is the rest of the law unchanged when this part gets struck down?

The answer, I think, is no, and from what I’ve read, even Sotomayor (who is a utopianist, and thus will have no problem with the mandate, but who does have some concern about maintaining her independence, so that she does not look like a political hack who takes orders from the President who named her to the Court) may agree.  There was universal agreement when the law was put into place that it doesn’t work without the mandate.  This was not just one provision among many – comparable, for example, to the particular way the law deals with abortion, which could stand or fall without changing the rest.  This was considered to be the lynch pin, without which the “cost curve” bends in the wrong direction and the whole law doesn’t work. 

Certainly, for example, striking down the individual mandate also kills the rules about preexisting conditions.  Under the law as written, an insurer can’t deny you insurance just because you have a preexisting condition.  And that works because everyone has to get insurance anyway (the mandate).  But take away the mandate, and the preexisting-condition rule destroys the whole rationale of insurance.  If you know that you can get insurance after you already have a problem, then you only buy insurance when you have a problem.  Like buying car insurance only when you have a repair to make.  This part of Obamacare just totally doesn’t work without the mandate.

So, okay, strip that out.  But what else needs to be stripped out?  The Obamacare legislation is famously long, so long that almost none of the legislators who passed it were able to read through the whole thing.  The Justices, including Sotomayor, were extremely skeptical of their ability to go through and figure out piece by piece, through hundreds upon hundreds of pages of technical legislation, what is and what isn’t affected by the mandate.  That becomes extreme micromanagement by the Court: impracticable for them, and inappropriate, since it really gets into properly legislative activity.

Thus the Court has to say, if the mandate goes, the whole law goes.  Send the issue back to Congress.  Say, “figure out how this works without a mandate, and pass something that works.”  We’re not striking down the other pieces per se, so you can try them again.  But it’s your job to figure out what works without the mandate and what doesn’t – as well as what you need to do to replace it.

And the great ironic thing hanging over everyone’s head is the obvious fact that Congress has changed.  Ordinarily, striking down the whole law wouldn’t be such a big deal.  If Congress actually wanted the law that it passed, then the Court could strike down the whole thing based on problematic piece, and Congress could quickly figure out the necessary modifications and save what could be saved. The problem is that they didn’t pass the law by legitimate means in the first place – didn’t have enough votes – and then there was a huge public outcry against it, and a landslide Congressional election almost entirely based on the unpopularity of the bill. 

Surely, at least behind closed doors, the Justices have to be acknowledging this: the only reason to make the severability argument is because you know perfectly well that the present Congress DOESN’T want to repass this bill.  Hardly deference to Congress, then, to say (a) that you’re going to strip their bill of its original meaning, and then (b) that you’re doing it precisely so that the current Congress can’t change what they want to change.  It would be extreme interference in politics for the Court to make a judgment of severability precisely to protect Congressional legislation from Congressional elections.

On the Individual Mandate, Part One: The Jurisprudence of the Court

On Tuesday and Wednesday of this last week, the Supreme Court heard oral arguments on the Constitutionality of Obamacare.  Tuesday the argument was on the individual mandate (the command that everyone in the country purchase insurance.  Wednesday the argument was over whether the rest of the thousand-plus-page law can stand if the mandate falls.  (Monday there were arguments on a technical point of jurisdiction; the Court seems clearly to think it has jurisdiction.)

My not-so-expert prediction is that Obamacare will be struck down by the Supreme Court.  Alito, Scalia, and Thomas are all considered dead set against it; the liberals are all for it.  Kennedy and Roberts, then, are the key votes.  Most believe Chief Roberts will follow Kennedy, if only to get in on writing this very significant decision.  It all rests, then, on Anthony Kennedy.

I did a little study of Kennedy’s past rulings.  I’ll spare you the details, but I’d say his jurisprudence is based on liberty.  Thomas is a radically strict constructionist: what the Constitution says, goes.  Scalia, Alito, and Roberts (probably in that order) are less strict constructionists: because they believe in the rule of law, they prefer to do what the Constitution says, but they also realize that precedent is the rule of law.  If interstate commerce, or due process, has been read in a bizarrely broad way in the past, they argue, then that reading is part of the rule of law; it will not do for the Supreme Court to make words mean something vastly different from what they’ve been understood to mean.  So they try gradually to roll things back towards a strict reading of the Constitution, but realize that this is a gradual process. 

Meanwhile, the justices of the Left, Ginsberg, Breyer, Kagan, Sotomayor, are all more or less utopianists.  Their jurisprudence is based not on the text of the Constitution, but on what it ought to be – a jurisprudence, one could say, of justice.  If they think Obamacare is just, the text of the Constitution is irrelevant.  This, I should add, is not an unreasonable jurisprudence.  I am on the side of the text of the Constitution, because I think it is key to the rule of law that we follow written texts, and I think the rule of law is key.  But it is reasonable for the liberal justices to say that the Constitution is a terribly antiquated text – in many ways it is – and that, anyway, for eighty years now, years of massive societal change, we’ve been ignoring it, so why go back now? 

There are good Catholic political philosophers, people who focus on “natural law” such as Hadley Arkes and J. Budziszewski, who agree with the liberals on this, and who strenuously reject the thinking of the Court’s conservatives.  They think the Court should rule for what is right, not what is written down.  As a student of Thomas Aquinas, I think this focus on natural law is a little naive, and I think it’s a matter of natural law, and rightness, to follow the written text (and thus the rule of law) anyway.  But it’s worth noting that the liberal perspective is not so crazy.

Nor is Justice Kennedy’s.  He has a simplified version of what’s right or good: a balance of individual liberties.  This is actually a pretty respectable view.  Instead of the utopianism of Ginsberg etc., which obviously falls into all sorts of subjectivism, he says, look, the basic principle of America, and of good government, is that the government won’t intervene unless you’re trampling on other people.  Reduced to a clear jurisprudential rule, the test is liberty.  You lose liberties only to the extent that you’re taking away other people’s liberties.

On this test, I think the Obamacare individual mandate falls because, by making people buy a product they don’t want, it unnecessarily intrudes on individual liberty. 

An interesting part of the decision will be how it’s written.  To varying degrees, Thomas, Scalia, Alito, and Roberts (in that order) will argue that the mandate is invalid because it does not match the enumerated powers in Article One, section eight, of the Constitution: specifically, a health-insurance mandate does not fall within Congress’s power to “regulate interstate commerce.”  But Kennedy, the key vote, will argue that it’s invalid for a totally different reason.  Expect him to write the decision, with significant concurring arguments from the others; maybe even a big one signed by all four.

Some further details tomorrow.

Hiding the Problem

Shortly after my daughter was born, we moved from a carpeted apartment in a tony part of Washington DC (where we lived rent-free when we were dorm parents) to a hardwood-floor apartment in the next neighborhood over—a neighborhood one would politely call “in transition.” In other words, there was an open-air drug market across the street and broken glass on the sidewalks.

My wife noticed a challenge keeping house in the new place: hardwood floors are always dirty.  Or rather, you can tell that they are dirty.  The hardwood floors don’t create the dirt, but shag carpet does such a lovely job of hiding it.  The carpet isn’t any cleaner, it just hides the dirt.

And it occurred to us that this is somewhat like the difference between the city and the suburbs.  One could make an argument (go ahead and try) that suburbs are self-cleaning or (slightly easier) that the city generates social problems.  We’ll return to that in a moment.  But whatever may be true on those levels, part of what makes the suburbs so desirable is that, like shag carpet, they hide the dirt.

A FASCINATING HISTORICAL PROBLEM faces the urbanist (especially the conservative one) in the nineteenth century.  It seems like – and lots of people argue without reflection that this is the case – the Industrial Revolution created poverty.  All those cowering people in the cities, so dirty, so hopeless, so Dickensian.  Surely, agrarians and liberals have long argued, the factories caused those people to be poor.

The funny thing is, the country people flocked to the city.  Why?  Well now, this is a complicated question, as all historical questions are.  People claim that industrial farming implements put tenant farmers out of work.  That may be – though notice the delicious irony: urban industrialism made farming vastly more efficient.  More on that another time (though if you’re interested, you can read the first chapter of Jane Jacobs’ The Economy of Cities, which will turn your little agrarian world on its head; or reflect for a moment on how you go about your gardening).  Industry did not cause there to be less food.  Industry did not cause people to starve.  To the contrary, industry made more.

So why did the people flock to the cities?  Well, in one very concrete historical case, we know the answer.  In Ireland, the country people were starving to death in a potato famine.  They came to New York – and the rest of the United States, including cities and countrysides – because they were even more desperately poor in Ireland.  They left their beautiful homeland, and suffered a very difficult journey, based on the letters they got from New York.  Oh, sure, to Jacob Riis in How the Other Half Lives it seemed that the Irish (and Germans, and Poles, and Italians, and all the rest) in New York were desperately poor.  But to the Irish in and from Ireland, New York looked pretty good.  New York didn’t make them poor; in fact, it made them vastly richer.  It made them the happy middle-class folks the American Irish are today. 

No, the difference between New York and Ireland wasn’t that they were richer back on the potato farm.  The difference is that in New York, there were journalists and novelists who noticed them.  (Silly journalists, of course – How the Other Half Lives is a very silly book, with all sorts of condescending claims about what criminals those people must be – “You know what happens in windowless bedrooms!!!” – and silly ideas about how to fix the problem.  But anyway, they noticed there was a problem.)

For the Irish immigrants, New York was like a hardwood floor.  It didn’t create the dirt, it just showed the dirt that was already there.  They were already poor – poorer, back on the land.  But the cities put them in sight, where something could be done about it.

What was done?  Well, Malthusians like the Rockefellers and Margaret Sanger said we should kill them off, or at least stop them from reproducing.  The first white flight tried to run away from them.  But others came up with social welfare schemes, ranging from the genuinely helpful to the stupid and unhelpful.  Mostly, people gave them jobs; ultimately, the reason they came to the cities (the reason the immigrants still come) was not to get welfare, but jobs.  They came to where they could be found, and where they could find work.  They wanted to be seen, so they got out of the carpet and into the city.

I AM READING a nice little study, Morton and Lucia White’s The Intellectual Versus the City: From Thomas Jefferson to Frank Lloyd Wright, about the American tradition of anti-urbanism.  Like How the Other Half Lives – and Malthus – people like Thomas Jefferson and Ralph Waldo Emerson argue that poverty and the city create human depravity.  There is a valid argument here, to which I will return in a moment. 

But first, consider the “hiding the problem” critique.  Is poverty really an urban phenomenon?  Or does it just appear more clearly in the city?  Is crime really an urban phenomenon?  Is it the city that causes people to lust, and commit adultery, and rape, and incest?  Are these things unheard of in the serene countryside?  (If you think they are, you need to read more.)  Are there more sex shops and strip clubs in Manhattan than in, say, Southwestern Michigan (just to pick somewhere improbable I sometimes drive through)?  I’m sorry to tell you that lust, and violence – not to mention lying, blasphemy, hatred, and despair – are alive and well in small-town America, as they have existed always and everywhere.  Oh, they are more visible in a place like New York, where you walk past them instead of driving by at 65 mph.  But carpets don’t clean themselves, hardwood floors don’t create dirt, and these problems aren’t unique to cities.  The difference is that in the city they are visible.

What to do?  There is an argument that we should flee.  The strongest argument against the city, I think, is that we don’t want to subject our children to these crimes.  In suburbia, or “the country” (both the real, and the imagined countryside – really suburbia – where most people running off to the country end up), if our neighbors are doing drugs, watching pornography, blaspheming, hating, lying, and despairing, well, at least our children won’t notice it.  Right?  Better to hide it than to let it corrupt our children?

In fact, the argument goes on, there is a vicious cycle.  We may have lust in our hearts already, but when we see pornography available on the street, we are more likely to indulge.  (Interesting, though: most of us would be much more embarrassed to enter a strip club, buy pornography – or say hateful things about other people – on a busy city street, even in a corrupt place like Manhattan where it’s perfectly “normal,” than in the comfort of our own home.)  Again, I think there’s something to the claim that availability makes sin easier.  We are affected by the culture around us.  And I respect the good will of the parents who decide they must flee.  I love Newark so dearly it brings me to tears; but I sure can’t blame all the people who wouldn’t touch it with a ten-foot pole.

BUT I THINK there are a couple responses.  One is in terms of responsibility.  Carpeting your house does not clean up the dirt; according to my wife, it just convinces you it’s okay to neglect it.  If the world is depraved, the only solution is to try to deal with it.  We have at least to deal with it in ourselves.  That’s not to say we should go to peep shows and try to toughen ourselves up.  It is to say that if our children cannot look at vicious people and know that they are vicious, our children are in trouble.  At some point, we need to explain to them that those things are bad. 

(And anyway, just anecdotally, I have children seven, five, three, and one, who have spent almost their entire lives in the inner cities of Washington, DC, and Newark, NJ, and we frequently take them to midtown Manhattan.  So far by a long shot the most perverse and corrupting things they have seen have been on television, not in New York: I gladly live in Newark, but I would never let a tv in my house.  There is sin in the city.  But we are not rolling in it.)

What they do see, and suburban children miss, is poverty.  I don’t think that corrupts them.  It humanizes them.

St. Peter the Apostle, according to legend, was fleeing persecution in Rome.  On the road out of town, Jesus appeared to him.  Quo vadis, Domine, asked Peter: Lord, where are you going?  “I am going into Rome to be crucified in your place.”  So Peter, rebuked, turned around and went back to the city.  The Christian has a responsibility.  The human being has a responsibility. 

Oh, sure, Peter didn’t have children.  But read anything at all about Bl. Louis and Zélie Martin, the parents of the Little Flower, known for her extreme (sometimes cloying) bourgeois innocence; you will quickly find that they went out of their way, made it central to their parenting of the saintly innocent children who became Thérèse, Céline, and the rest, to seek out the beggers, to rub their children’s faces in the face of urban poverty.  Don’t romanticize it.  They didn’t.  It was ugly, and anonymous, and full of vice.  Read Story of a Soul with half an eye open, and you’ll see Bl. Louis taking Thérèse to all the most corrupt places in Europe.  Lisieux was a medium-sized town – much smaller than Newark – but they didn’t hide social problems in shag carpet.  Thérèse and Céline say they were strong because they knew what corruption looked like.  The Little Flower’s blessed father took her places where creeps tried to grab her.

The Christian, the lover of humanity, has a responsibility.  A responsibility as an individual to care about the desperate in his society.  But also a responsibiltiy as a parent to teach his children to care.  Hiding the problem is avoiding responsibility.

And, as such, it might be avoiding the fulness of life.  Sinners on tv are horrible soulless people who corrupt the weak.  Sinners in real life are real people.  Sometimes we might learn to love.  That’s not a bad thing. 

THE PROBLEM IS we are social beings.  You can’t hide forever from your neighbors.  Letting society collapse around your ears is no strategy for raising healthy children.  And anyway, it is not good for us to be alone.  Mercy is a beautiful thing.  Love of God and love of NEIGHBOR are inseparable.  Making sure you never have neighbors, or only neighbors who don’t need any love, might cut too deep.  We don’t do much for our neighbors.  But at least we show them that the love of our family is stronger than their corruption.

I can appreciate those who look at Newark and see danger.  I understand parents who want a neighborhood that gives to them more than it takes.  Of course, I would say that our urban neighborhoods give us all sorts of things that you can’t get in the suburbs: parks and neighborhood grocery stores, real neighborhood parishes and street festivals, the opportunity to walk and the spectacles of the sidewalk.  But finally, the greatest gift that Newark gives us (not unlike family) is the opportunity to love and have compassion.

Romney Republicans: an Update

The plot thickens.  Romney is now looking more inevitable than ever, with conservative-establishment darlings Jeb Bush and Jim De Mint now lining up behind him, and a swing in the polls in Wisconsin, arguably Santorum's heartland, from Santorum winning by 15 to Romney winning by 15.  I'm not cheering for either side here -- I just wrote a long piece about the positive significance of Santorum's religious thought, which does have implications for Romney.  But I do think it's possible -- I don't know how likely, but possible -- that Romney could be really good.

I recently argued that Romney represents a new and very different kind of "Rockefeller Republican": in the model of Chris Christie, Paul Ryan, Mark Walker, and my man, Mitch Daniels, among others, Romney may be someone who puts everything else aside in favor of fixing our nation's books: the managerial revolution.  I argued, using Chris Christie as case number one, that there is even something of a subversion of democracy here (which I do not see as necessarily a bad thing).  Christie concealed who he was in order to get elected, because that's the only way he could do the work my state, New Jersey, so desperately needs.  Perhaps Romney is doing the same.  Perhaps, like all of the above, he is in truth a morally conservative, fiscally conservative, limited-government guy -- but, as Mitch Daniels said a year ago, he realizes we need to call a truce on everything else, as far as possible, in order to get a mandate for dealing with the Red Menace of debt.


TODAY the Wall Street Journal's Weekend Interview -- one of the best features of America's finest newspaper -- is with Rhode Island's new treasurer, Gina Raimondo.   I don't know anything about her, but the Weekend Interview usually shoots pretty straight.  I have to say, though, this Weekend Interview strikes me as naive.

The Interviewer, Allysia Finley, grins that Raimondo is a Democrat, who likes government: ha!  gotcha, public unions!  But otherwise, Gina Raimondo is Chris Christie: public enemy number one of the unions, and now America's greatest reformer of public pensions, in the name of keeping the books.

The former venture capitalist is a Democrat, which means that she believes in government as a force for good. But "a government that doesn't work is in no one's interest," she says. 

"Budgets that don't balance, public programs that aren't funded, pension funds that are running out of money, schools that aren't funded—How does that help anyone? I don't really care if you're a Republican or Democrat or you want to fight about the size of government. How about a government that just works? Put your tax dollar in and get a return out the other end." 

A few years ago Ms. Raimondo read "an article in the paper about libraries closing and public bus service being cut nights, weekends and holidays, and I just thought it doesn't have to be this way." 

"When I started to talk about pensions, [people] would ask 'Why should I care about pensions?' And I said, 'Because if you don't, your whatever it is, homeless shelter, is going to lose X thousand of dollars of funding.'" 

Republicans often threaten to slash funding for charities and foundations, but Democrats pride themselves on being more compassionate. So when the Democratic treasurer warned "foundations that you're going to get a cut if we don't reform," people believed she was speaking in good faith. 

This is pure Chris Christie, Mitch Daniels -- perhaps (I hope!) Mitt Romney.

Paul Ryan, who is very earnest and honest (a boy from Southern Wisconsin, like me! doesn't know how to hold his cards close like these Northeasters), is accused of wanting to push Granny off a cliff.  I just saw an extremely earnest article in the Christian Science Monitor (not something I read! I followed a link) about how Paul Ryan is a pure social Darwinist, trying to kill off the weak!  Yikes!

So, if you really want to do what Paul Ryan is making clear (to non-fanatics) that we must do, you have to take a different tack.  You say, oh, no, I'm a bleeding-heart liberal!  I want big government!  No, really, I'm a Democrat!  I'm doing it for the public libraries!  And then you get in and slash and burn.  Not cynically, but earnestly, because it's true: there will be no public libraries if we don't solve this problem.

Or, perhaps, (I hope!) if you're running for the Republican nomination for president, you say, yes, of course I'm the biggest hawk on the planet, I'm passionate about bombing Iran, and I just hate illegal immigrants -- but you also do your best to make no promises about cutting taxes (which has to take second seat to cutting spending), you do nothing to pose as a social conservative (even if you are), because you have to win the election in November.  (Is Romney saying whatever the polls want him to?  Absolutely!  Does that mean he has no convictions?  Not necessarily . . . .)  If you're a pro-lifer like Mitch Daniels, you lie and say you're not -- not because you would be pro-choice in office (any more than Romney was pro-choice in office, even though he said he would be), but because you must get elected, because the state needs you to clean up.  If you're like Chris Christie and Gina Raimondo, running in really screwed up, really Democratic states like New Jersey and Rhode Island, you say you're a squishy moderate, maybe even a liberal Democrat.


ARE THESE LIES?  Are they a subversion of democracy?  Oh, kind of.  But not exactly.

Not exactly lies, because all of these Managerial Republicans (or Democrats) ARE saying what they think is most important.  Gina Raimondo DOES care about libraries.  Chris Christie DOESN'T just want to take the side of the rich and the suburbs against the poor and the cities.  Mitch Daniels DOES think that it's worth making a truce on social issues in order to defeat the Red Menace.  It's just a matter of emphasis.  Or, to put it in a more sinister way, of hiding what the people most want to know, in order to give them what they most need to know.

A subversion of democracy?  Yes and no.  Democracy, remember -- mob rule, majority rule, putting everything to a vote -- is not the American ideal, or was not until about a hundred years ago.  Our founding fathers knew that democracy is the most foolish kind of government.  The kind of government that gives the people anything they want, even when it means destroying our foundation: putting us deep into debt so we can pretend to be richer than we are, destroying our families and our cultures so we can have fun now, etc.  Democracy is the juvenile form of government.  Our founders wanted a Republic, where the people speak, but where there are significant safeguards against this kind of adolescent behavior.  (I'm not proposing monarchy, which the founders -- and I -- think is just as bad, if not worse!  Just a more careful kind of popular rule, where the People as a whole rule, through their better angels, not the mob through its basest passions.)

The Managers realize, after a hundred years of this stupidity, that they have to talk the democratic talk, say what they need to say to get elected.  But, in a complete turning inside out of the Rockefeller ideal, rather than then giving them what they want, the Managers intend to give them what they need.  (This is the complete opposite of people like Ross Douthat, who pose as conservatives but propose liberal policies.)  Not a perfect system.  But when we had a pretty good republican Constitution, we broke it and turned it into the mess we have now.  So the Managers work with what they've got.


BY THE WAY -- I argued four years ago that Rudy Giuliani was a cynical manipulator -- in the very most positive sense of those words -- in this very way.  New York wants a social liberal?  Okay!  "I'm a social liberal!"  Now I'm going to kick the slime out of Times Square and the Brooklyn Museum, fight abortion with every tool I can find, get crime off the streets, and make New York into a place for families again.

I'm not a native of the Northeast.  My people speak plainly, like Paul Ryan.  But people around here know something about dealing with crowds.

Al Smith, JFK, and Rick Santorum

Here's a piece in the New York Times by one Gerald Howard decrying 2012-Catholic-Presidential-candidate Rick Santorum's disavowal of 1960-Catholic-Presidential-candidate John F. Kennedy's famous speech on the separation of Church and state.  Well, I don't expect much from the Grey Lady, and she never disappoints (or never fails to disappoint), so I'm not surprised if this inane.  Though (contrary to the last sentence) I'm pleasantly surprised to see they have a companion piece by the eminent Stanley Fish, "Rick Santorum Isn't Crazy," arguing that the "wall of separation between Church and state" that JFK's so eagerly embraced is not good law, not Constitutional, not demanded by the Supreme Court or the Founders, etc.  

I wanted to respond, however, to Mr. Howard's avowal, "The election of Jack Kennedy as president on Nov. 8, 1960 was certainly the happiest day in the history of American Catholicism, in good part because it helped heal a deep historical wound we had suffered 32 years previously."

That wound, of course, was the "humiliating" defeat of Al Smith, the Democratic candidate for president in 1928, and the first Catholic to be nominated for that position by a major American party.  Smith got just over 40% of the vote, surely tied, in part, to an aggressive campaign by the Ku Klux Klan.  Smith was horrified, upon campaigning across the country, to find burning crosses at many stops.  There is no doubt that Al Smith's defeat has much to do with anti-Catholicism, and no doubt that JFK's victory has something to do with a kind of end to anti-Catholicism.


HOWEVER.  First, we must note that there were other factors in Smith's defeat.  In 1928, America was at the peak of its biggest economic boom ever.  Republicans had controlled both houses of Congress and the presidency for the whole decade.  Smith did only slightly worse than Democrat John Davis had done in 1924, before four boom years of Republican leadership.  In fact, because Robert La Fallotte ran as a Progressive that year, Davis got a much lower percentage of the vote (28.8%) than Smith did.  And the split of 1924 says something about the state of Democratic party, which was undergoing a serious identity crisis in those years.  Smith himself would abandon the party in 1934, after Roosevelt's left-turn seemed to forsake the party's Jacksonian defender-of-the-little-guy philosophy in favor of patrician authority.  (Smith's 1934 speech to the American Liberty League, which I can't find on the internet, is fantastic.)

And the Republicans had the political sense to run a moderate Herbert Hoover (actually, probably to the left of Smith) to replace Calvin Coolidge.  Why should America switch parties when the Republicans were doing a great job and were posing as moderates?

Finally, Smith's campaign was a bit tone deaf.  Al Smith was about as New York City as you can get -- an Irish kid from the Lower East Side.  As Rudy Giuliani has discovered, the rest of the country doesn't get New York, and is nervous about New Yorkers.  And Smith didn't get that -- his campaign song was "The Sidewalks of New York," a great celebration of . . . precisely what made him foreign to the rest of the country.  There are, in other words, a lot of reasons Smith lost, not just anti-Catholicism.


NONETHELESS, yes, surely anti-Catholicism played a roll.  Hence JFK's need to give his famous speech in Houston.  The problem with Kennedy's speech -- and Kennedy's election -- can be shown by putting it side by side with an identical moment in Smith's campaign -- Smith's May 1927 open letter, in the Atlantic Monthly.  (Charles C. Marshall, a prominent Episcopal layman and Constitutional lawyer, had attacked Smith's Catholicism in those pages the month before.)

Kennedy's speech focuses on the distance between him and the Catholic Church.  But I'll give you excerpts from Smith's letter first, so you can see the very different approach Kennedy could have taken.  Here's Al Smith on why it's okay to elect a Catholic President (this letter is so magnificent, it's hard not to quote the whole thing):

In your open letter to me in the April Atlantic Monthly you 'impute' to American Catholics views which, if held by them, would leave open to question the loyalty and devotion to this country and its Constitution of more than twenty million American Catholic citizens. I am grateful to you for defining this issue in the open and for your courteous expression of the satisfaction it will bring to my fellow citizens for me to give 'a disclaimer of the convictions' thus imputed. Without mental reservation I can and do make that disclaimer. These convictions are held neither by me nor by any other American Catholic, as far as I know.  ...

 you imply that there is conflict between religious loyalty to the Catholic faith and patriotic loyalty to the United States. Everything that has actually happened to me during my long public career leads me to know that no such thing as that is true.  ...

You yourself do me the honor, in addressing me, to refer to 'your fidelity to the morality you have advocated in public and private life and to the religion you have revered; your great record of public trusts successfully and honestly discharged.' During the years I have discharged these trusts I have been a communicant of the Roman Catholic Church. If there were conflict, I, of all men, could not have escaped it, because I have not been a silent man, but a battler for social and political reform.  ...

 I am unable to understand how anything that I was taught to believe as a Catholic could possibly be in conflict with what is good citizenship. The essence of my faith is built upon the Commandments of God. The law of the land is built upon the Commandments of God. There can be no conflict between them.  ...

any unwarranted religious influence ... other than it should play in the life of every God-fearing man . ...

 for Catholics alone the Church recognizes no deviation from complete acceptance of its dogma. These words are used in a chapter dealing with that subject only. The very same article in another chapter dealing with toleration toward non-Catholics contains these words: 'The intolerant man is avoided as much as possible by every high-minded person.... The man who is tolerant in every emergency is alone lovable. The phrase 'dogmatic intolerance' does not mean that Catholics are to be dogmatically intolerant of other people, but merely that inside the Catholic Church they are to be intolerant of any variance from the dogma of the Church.  ...

 'If religious freedom has been accepted and sworn to as a fundamental law in a constitution, the obligation to show this tolerance is binding in conscience.'  ...

 'Pope Pius IX did not intend to declare that separation is always unadvisable, for he had more than once expressed his satisfaction with the arrangement obtaining in the United States.'  ...

'The Catholic doctrine concedes, nay, maintains, that the State is coordinate with the Church and equally independent and supreme in its own distinct sphere.'  ...

'To the Catholic obedience to law is a religious obligation, binding in God's name the conscience of the citizen ...' 

Under our system of government the electorate entrusts to its officers of'every faith the solemn duty of action according to the dictates of conscience  ...  

My summary answer is: I and all my children went to a parochial school. I never heard of any such stuff being taught or of anybody who claimed that it was. That any group of Catholics would teach it is unthinkable. ...

I believe in the right of every parent to choose whether his child shall be educated in the public school or in a religious school supported by those of his own faith. ...  

 And I believe in the common brotherhood of man under the common fatherhood of God. 

In sum, Al Smith's response to anti-Catholicism was to say that the Catholic Church does not teach the objectionable things ascribed to it -- that, in fact, Catholicism makes a person a good citizen.  Good citizens are God-fearing, follow their conscience, and obey the laws, including the Constitution.  Non-Catholics should vote for Al Smith because he is a good Catholic, and good Catholics make good presidents.  We want leaders who are rooted in sound religious principle.


This is not to say that Smith was perfect.  He does use the words "absolute separation of Church and State" -- words that later in the century would become problematic.  Though the context in which he uses those words clearly delimits their meaning.  The judgment of a Church tribunal, he says, does not hold in the civil sphere; excommunication is a religious, not a civil, penalty.  But we want religious men to be presidents, and we expect religion to make them upstanding people.

Similarly, he uses phrases like "the consecration of the rights of conscience;" if the Pope illegitimately intervenes in properly civil affairs, "Any Catholic . . . would not be bound to obey the Pope; or rather his conscience would bind him absolutely to disobey, because with Catholics conscience is the supreme law;" "I believe in absolute freedom of conscience."  But again, in context these statements are less extreme.  When talking about disobeying the Pope, his point is that the individual believer has to figure out how to apply Church teaching to particular circumstances -- but it is clear through his abundant references to Catholic rulings that "bind in conscience" that he does not believe Catholics have any right to act against Church teaching, only that Church teaching is properly about moral issues, not political ones.  Conscience is about the application of moral norms, not the creation of them.

And, okay, Gov. Smith, as much as I love him, was a bit naive.  "In the wildest dreams of your imagination you cannot conjure up a possible conflict between religious principle and political duty in the United States, except on the unthinkable hypothesis, that some law were to be passed which violated the common morality of all God-fearing men."  Um . . . .  That didn't stay unthinkable for long.  But as he goes on, his point is that every person, and certainly every moral person, has to deal with the same kind of moral quandaries.  "How would a Protestant resolve it?  Obviously by the dictates of his conscience.  That is exactly what a Catholic would do."

Okay, Smith was really naive.  Making the point that he employs the best men, not just people who go to Church with him -- and thus that his Catholic convictions are to good governance, not to tribal favoritism -- he makes this horrific statement:

The man closest to me in the administration of the government of the State of New York is he who bears the title of Assistant to the Governor.  He had been connected with the Governor's office for thirty years, in subordinate capacities, until I promoted him to the position which makes him the sharer with me of my thought and hope and ambition in the administration of the State.  He is a Protestant, a Republican, and a thirty-second-degree Mason.  

I don't know whom he's talking about, though it makes me shudder, at that time, to hear a Catholic bragging about how he shares the hopes and dreams of Masons.  Smith was also under the thumb of Robert Moses (who, being Jewish, and only thirty-nine at the time, is probably not the person described here), who turned out to be a real jerk, more of a power broker than a public servant.

So Smith wasn't perfect.  But anyway, when he describes why he would be an acceptable president, his point is that Catholicism makes him better, not worse.


Compare that to JFK's 1960 speech:

it is apparently necessary for me to state once again -- not what kind of church I believe in, for that should be important only to me -- but what kind of America I believe in.   I believe in an America where the separation of church and state is absolute  ... 

where no church or church school is granted any public funds or political preference
where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials  ...  

where there is no Catholic vote ...

I believe in a President whose views on religion are his own private affair
whose fulfillment of his Presidential office is not limited or conditioned by any religious oath, ritual, or obligation. ... 

my declared stands against an Ambassador to the Vatican, against unconstitutional aid to parochial schools, and against any boycott of the public schools ... 

But let me stress again that these are my views.  For contrary to common newspaper usage, I am not the Catholic candidate for President.  I am the Democratic Party's candidate for President who happens also to be a Catholic.... 

I do not speak for my church on public matters; and the church does not speak for me. Whatever issue may come before me as President, if I should be elected, on birth control, divorce, censorship, gambling or any other subject, I will make my decision in accordance with these views 

Oh, he too makes a couple references to conscience.  But JFK's argument seems to be that you should vote for him because he is not a Catholic.  He makes no effort to defend his Church; he just disavows it.  He makes no effort to defend the role of religion in public life; he just disavows it.  He makes no effort to explain the importance of religion in forming a conscience; he just disavows it.  Where Al Smith explicitly emphasized that he was a good Catholic -- a communicant, a child and supporter of parochial schools, a friend of bishops, an obedient servant of public schools -- JFK's disavows it all, especially emphasizing his rejection of parochial schools and of Church teaching on precisely the kind of things that Smith refers to as "the common morality of all God-fearing men": "the law of the land is built upon the Commandments of God," said Smith.  

The timing makes it all the worse.  Kennedy had perhaps the easiest opening ever for a Catholic candidate.  In 1960, the Sexual Revolution had not yet burst forth.  Griswold vs. Connecticut was 1965; abortion became an issue in the 1960s; the FDA first approved what would become the Pill in 1960, though it was not yet marketed as a contraceptive; divorce was only just beginning to arise as a political issue.  Meanwhile, since World War II (and the move to the suburbs), Catholics had gained a new kind of acceptance, as Kennedy himself eloquently explained in this speech: "this is the kind of America I fought for in the South Pacific, and the kind my brother died for in Europe.  No one suggested then that we might have a divided loyalty."  Finally, Kennedy was explicitly running as a conscience candidate (again from the same speech): 

 I believe that we have far more critical issues in the 1960 campaign; the spread of Communist influence, until it now festers only 90 miles from the coast of Florida -- the humiliating treatment of our President and Vice President by those who no longer respect our power -- the hungry children I saw in West Virginia, the old people who cannot pay their doctors bills, the families forced to give up their farms -- an America with too many slums, with too few schools, and too late to the moon and outer space. These are the real issues which should decide this campaign. And they are not religious issues -- for war and hunger and ignorance and despair know no religious barrier. 

What a very silly statement.  Of course worrying about war and hunger and ignorance and despair is religious.  Of course people have religious motivations for dealing with these things.  Kennedy could have taken the high road, and said, hey, vote for me, because my religion, far from making me a scary president, would make me a great, just, moral, god-fearing president.  Instead, he chose to disavow his religion.

The happiest day in the history of  American Catholicism?  I have to agree with Rick Santorum that when almost 80% of Catholics voted for a man who disavowed his Catholic faith, it was a very sad day indeed.

As a footnote, let me add that that Santorum gave his own Houston speech.  Like Smith, he did it well in advance of the election.  It is a model of how a Catholic explains his involvement in politics -- not by disavowing his faith, but by explaining how his faith contributes to his political vision.  Like Smith, Santorum may be naive and imperfect as a politician in many ways -- I disagree with a lot of his positions.  But on faith and politics, he's got it right.