Posted by: captainfalcon | February 2, 2011

Human, all too human

I have four points about Jack Balkin’s intemperate post excoriating Judge Vinson’s (even more intemperate) opinion striking the entire ACA.

1. He altogether pwns Rep. Hal Wick.

2. His characterization of the individual mandate as a contemporary expression of civic republicanism (the existence-during-the-early-Republic of which was first identified in this book) is highly tendentious. I don’t have The Creation of the American Republic in front of me, but I recall it lending more support to the view that civic republicanism (1) was a constitutional, not legislative ideology, and (2) was only instrumentally concerned with the kind of selfishness that (Balkin thinks) animates the ACA’s opponents.

The essence of civic republicanism is its view that when communities became too wealthy – particularly by means that didn’t require consistent hard work from all – they became flabby, lost their vigilance and, thence, their liberties. (The canonical example on which civic republicans drew was Robert Molesworth’s An Account of Denmark, which argued that Denmark lost its republican government because commercial success bred indolence.) Thus, the civic republican goal was to maintain a vigilant, virtuous (and hence quasi-Spartan) society. It did sometimes legislate in the service of this end. (Wood points to some initiatives – certain sumptuary laws (for example), and proposals for agrarian laws, as well – that seemed an outgrowth of civic republicanism.) But its primary approach was to advocate a particular constitution of society: into small, intrinsically modest, agrarian communities where robust civic engagement would maintain virtue* among the citizenry and thereby forestall the erosion of its liberties and spirit. Thus, civic republicanism was concerned with basic social structure, not legislative tinkering (if you needed to legislate virtue it was already gone); and it would only have disparaged selfishness insofar as that vice eroded the community cohesion necessary to prevent a devolution a la Denmark. On the Affordable Care Act, therefore, it is largely silent.

3. Balkin also misunderstands the nature of opposition to the ACA. It is not (in the first instance) rooted in selfishness, but in an intense anxiety about state power. Judge Vinson begins his opinion with Federalist 51’s admonition that a Constitution only has a point because “men are not angels,” and the rest is variants on that theme (most humorously, comparing the Individual Mandate to George III’s mandate authorizing a British monopoly on tea). While it is arguable that anxiety about state power is, in some sense, itself rooted in a selfish interest in actions instead of people, that connection to selfishness is too etiolated to sustain Balkin’s unconditional indictment.

(It is even more arguable that the kind of anxiety about state power on display in Vinson’s opinion is too abstract to be the justifiable basis for decisions that affect real human beings. But it (may be) worth noting in that regard that basing important political decisions on bizarre abstractions is also a theme of the nation’s founding. Bernard Bailyn points out, in The Ideological Origins of the American Revolution, that one of the revolutionaries’ rhetorical devices was to lament their “enslavement” by the British, where slavery had terrible connotations, but meant only that the British were not prevented by law from exercising arbitrary power over the colonies – not so terrifying when you consider the various practical and conventional constraints in which the King in Parliament was swaddled.)

4. It is fairly obvious that Balkin’s characterization of the ACA as an outgrowth of civic republicanism is a purely political effort to co-opt the right’s monopoly of the national myth; ethical originalism is the ascendant mode of constitutional politics, and Balkin wants in on it. I analyzed his “strategic deployment of originalism” here; RPW explains that it’s just lawyering-as-usual:

[L]awyers, unlike serious philosophers [but, in this regard, quite like second-rate philosophers], do not actually seek to demonstrate the positions they defend. Rather, they aim to assimilate issues with which they are concerned to the existing structure of laws and precedents in hopes that courts will construe those issues in ways that favor their clients. For this purpose, lawyers need a large and versatile armamentarium of concepts, categories, distinctions, and argument-fragments with the aid of which they can articulate intuitions, convictions, or interests to which they are already committed. Both utilitarianism and cost/benefit analysis provide just such weapons to advocates of the left or the right, none of whom can be said ever to prove their positions, but all of whom gain argumentative leverage from their ability to embed their advocacy in a preexisting proof structure.

* Think the opposite of Robert Walpole’s administration.

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