Scalia and the Broccoli Conundrum

 

According to the transcript of the Affordable Care Act debate before the Supreme Court, Justice Antonin Scalia used broccoli in one of his analogies. Specifically, if the government can force a person to buy health insurance, couldn’t the government force a person to eat broccoli. I think this will go down in the annals of Supreme Court history as the “Broccoli Conundrum”.
I will be the first to admit that I have not read the entire transcript of the arguments, so I may be taking his statement out of context. But that is acceptable. I simply follow Mr. Scalia who has admitted he has not read the law he will be rendering judgment on. So, following his lead, I will limit my comments and analysis to the broccoli.
His analogy was a simple one. Worthy of any 9th grade social studies student. Clear. Uncomplicated. Unfounded. And missing the point entirely. Let us examine.
He compares a requirement to pay a fee or tax to the force feeding of a specific food. Shoving something down someone’s throat is hardly analogous to charging a fee. Yet, giving Antonin the benefit of the doubt, let’s examine this idea. He has drawn the conclusion that if the government can force one to pay a fee for insurance, it can then force any behavior. As I said, not bad for a 9th grader. Not good for someone who fancies himself a legal scholar.
One weak point in the analogy is obvious. While the government mandates that an individual purchase insurance, there is no mandate to actually use the insurance. There is no physical coercion. No penalty for not seeing a doctor. No one is forced to have an operation. It is simply a financial burden.
The government is replete with similar financial burdens. For example, I am forced to pay taxes or fees for the interstate highway system, parks, dams, bridges and other government enterprises. The government does not force me to use the highways. I may never directly benefit from or use these, but I am required to pay my fair share. I am also required to pay Medicare and Medicaid taxes, though I am not a recipient of those services.
I am forced to subsidize the oil and other energy industries, the military, churches and other non-profits and a host of others who receive tax breaks. I make up the difference. And receive no direct benefit.
I am not complaining. I fully understand (as our imaginary 9th grader has yet to comprehend) that as a member of society we all need to pull our weight. All of us. And each of us pays fees or taxes for things which we do not approve.
Back to broccoli. Can the government force me to eat broccoli? In a sense, yes. The government can force feed individuals, against their will. And if I fail to provide food for my children, the government can force me to do so, or take away the kids. In fact, should I choose to die by starvation , the government will not allow it. It will demand that I be force fed against my will. So, in that sense, the government does have a right to force me to eat my broccoli.
Today we have governments that are forcing women to undergo vaginal probes. Forcing employees to give blood for drug testing. Forcing men and women to take alcohol tests. Even force men and women to go overseas to fight and die. The list is pretty long. And I have yet to hear Antonin utter complaints about those intrusions.
So, Justice Scalia’s simplistic analogy falls flat. The answer, Antonin, is “Yes”. We live in a society. We share the fruits, we share the burdens. The government has , for many years, forced us to do things far more personal and more intimate than another tax.
So, Tony, remember what your mother said. “Eat your broccoli, it’s good for you”. And pay your taxes.

Democracy or Theocracy

Once again the US is faced with the conflict over religious freedom and secular law. The forces of institutionalized religion, largely the hierarchy of the Catholic Church, have decided they are above mere secular law. The refusal to pay for a woman’s health insurance by the church is just a minor example of a greater problem. Who decides the law in the US ?

There is no middle ground in this debate. The US is either a secular nation, ruled by laws passed and enacted by a legitimate government authority. OR. The US is a theocracy, ruled by the dictates of self-anointed religious clergy. There is no third option. One or the other must have ultimate authority.

We see theocracies in the middle east. Saudi Arabia is a good example. Look also to Afghanistan, Iran, and perhaps eventually Egypt. People are free to do whatever the ruling elite and the ruling theocrats allow. They have no recourse to challenge or alter the decisions of the theocrats or monarchs. Is this the path the US wishes to follow ? The fundamentalists in the US would answer “YES”.

It is a dangerous game the GOP has played with the religious conservatives and fundamentalists over the last 30 years. By combining a radical, old testament driven theology with modern political propaganda they have severely weakened the democratic ideals of the founding fathers. those founding fathers they idolize and idealize EXCEPT when it comes to the over arching ideal of secular government.

Is the current trend in the new GOP dangerous ? Yes.  Religious views must always be protected. Freedom to discuss religious ideas and worship in legal ways is one of the rights guaranteed. No one denies that. But this religious freedom does not mean that religious leaders are ABOVE the law. To accept that is to take the first steps toward theocracy. All people and institutions, secular and religious, are governed by secular law.  To have it otherwise is to reduce government to anarchy , or worse, theocracy.

So, my neoConservative  friends need to rethink their rhetoric about “freedom of religion”. Without context, it becomes a call for a fundamental theocracy. Something most Americans find repulsive.

The Powerful Ninth Amendment

Take some time to read the 9th Amendment. A great amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
There is a popular position that the rights granted in the Bill of Rights are the ONLY rights we have been granted under the Constitution. The Ninth Amendment is pretty clear…the written rights are NOT the only rights we have. Do we have a right to privacy ? A right to health care ? A right to an education ? A right to be secure from corporate intervention ? The Constitution, as a living document, grants us the power to delineate rights as circumstances warrant.

A good discussion of the Ninth Amendment:

http://legal-dictionary.thefreedictionary.com/Ninth+Amendment