Posted by: captainfalcon | May 4, 2012

Liberal Constitutionalist Values Lead to Moral Confusion about the ACA

At Balkinization, Rob Weiner’s guest post about the advent of the legal challenges to Obamacare has some good funfacts, especially about the Florida Attorney General’s forum-shopping and how in some states governors filed the anti-Obamacare lawsuits and in others Attorney Generals did.

On the other hand, his assessment of the “disparity” between Democrats and Republicans in their conduct toward Obamacare is ill-considered even if it comes to the right conclusion. He writes:

Although Democrats are almost as consistent in defending the constitutionality of legislation as Republicans are in attacking it, their positions are not in parity. Legislation is presumed to be constitutional. It is Republican Attorneys General and Governors, supported by Republican members of Congress, who departed from the default position, who took the initiative to bring the challenges and who seek to displace the verdict of the elected branches of government. It is thus the lineup of the challengers of the law, not the defenders, that raises concerns about the democratic process.

Two problems. First, whatever “parity” is supposed to mean here (parity with respect to what?), it is clearly supposed to have something to do with fidelity to the presumption of constitutionality and the democratic process. But, then, it is clear that the Democrats occupy a superior position here solely in virtue of the happenstance that they support Obamacare. They are not motivated by fidelity to the presumption of constitutionality and the democratic process; it just so happens that their interests do not require them to disrespect those fictions. It is a commonplace too trivial to note that the Democrats have, in the past, been in a position of opposing prior “verdict[s] of the elected branches of government.” (This matters because if fidelity to the presumption of constitutionality and the democratic process are the criteria by which one is to judge the probity of political actors, then the real story is not that the Democrats are in a superior moral position with respect to Obamacare but that both parties are wholly disreputable. That this is not the real story suggests, as we’ll see, that the criteria Weiner deploys are inconsequential.)

One could perhaps muster arguments that the Democrats’ prior opposition has been more plausibly grounded in constitutional doctrines (themselves the product of Twentieth Century politics). The rejoinder is invariably some combination of (i) those constitutional doctrines still don’t mandate the result you seek (and should be read cautiously given the presumption of constitutionality), and (ii) they are, anyway, deviations from an earlier set of constitutional doctrines. Were those earlier deviations illegitimate? If not, then deviations per se aren’t illegitimate either.

The reason this persiflage can continue ad infinitum is that there is nothing real under debate here. The goalposts can be in constant flux because they are not tethered to bedrock human concerns (if any there be*). This raises the second problem with Weiner’s post, which is that it propounds an alienated analysis that fetishizes two fictions carrying, of themselves, no independent normative weight. True, the presumption of constitutionality exists, alongside other doctrines, in the contradictory welter of indeterminacy and neglect that is the Supreme Court’s methodological jurisprudence. It is also true that we happily (my suspicion is, for the most part, also knowingly) indulge the illusion that decisions made by the “elected branches of government” represent the will of the people and, as a mysterious result, have some kind of normative weight. Equally, it is true that one can invoke the democratic process and the presumption of constitutionality to score points in partisan flamewars (though whether you’ll get converts, or just high-fives, is another matter).

But only somebody who has lost all touch with what really matters — “bedrock human concerns” — would let the presumption of constitutionality, or concerns about the integrity of the democratic process, determine his view about what ought to be done. This is because the moral parity or disparity of two positions does not turn on how many stirring abstractions are emblazoned on their eschatons. (Though rhetorical parity does so depend. Recall the question I asked earlier — parity with respect to what? Maybe rhetorical parity is what Weiner is writing about? That would be sad.) Instead, the moral worth of a particular course of action (which bears on, but does not wholly determine, the moral parity / disparity of those advocating for it) turns on a complex, all-things-considered judgment about its effect on the things we should care about.

From this perspective the Democrats may still be in a superior moral position. The diminution of human suffering is a reasonable candidate for something we should care about, and Obamacare seems to work that effect to some small extent. But notice that we are now about as far from the desiccated presumption of constitutionality as one can get.

* Metaethical note: It is possible (likely) that there are no “bedrock human concerns” that we all should, as a matter of immanent rationality, care about. In that case there is still room for moral assessments. They will be relativistic, but need not, as a consequence, be any less emphatic. I repeat and re-allege, emphatically, that when the chips are down nobody should give a shit about the presumption of constitutionality per se.


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