In the delusional world of David R. Dow, columnist for the Daily Beast, ruling against Obamacare is an impeachable offense. He wrote as much today:
In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
What leads him to this absurd conclusion? First he begins by stating, without any evidence whatsoever, that Obamacare is “a clearly constitutional law.” This is sheer and absolute ideological excrement. The Constitution is a document of limited powers. It does not give Congress the right to force anybody to buy anything under the so-called Commerce Clause.
On this casual dismissal of 200+ years of constitutional jurisprudence, Dow hangs his ideological hat. “The problem,” he writes, “is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.” Another broad statement with no evidence. His argument is even less convincing:
During that period—which ran from the years after of the Civil War to the start of the 20th century—wealth became highly concentrated and corporations came to dominate American business.
At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent—a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and comprised an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.
This is a massive rewriting of American history, except on the issues of sex and race (which had nothing to do with Supreme Court rulings, for the most part). The fact is that during this period, America turned from an economic backwater into the most powerful economic force on the planet. The U.S. infant mortality rate at the beginning of the 20th century was 10 percent … but the infant mortality rate in Great Britain was about 40 percent higher than that. As for corporations exerting influence, can we really argue that anything changed during the last century? And can we argue that the corporations that dominated American life at the beginning of the 20th century were really horrible for the country overall?
Of course not. So he skews the history. Then he moves on to skewing the law. He says that until the 1930s, essentially, the Court resisted changes to these social ills. Wrong. The Court stood up for the Constitution, which protects ideals like liberty of contract at the state level (Lochner, e.g.).
But now, of course, the Court’s interpretation of the Constitution must be ruled radically out of bounds by none other than David Dow, based on nothing.
He cites the case of Gonzalez v. Carhart as an example of this supposed regression. In that case, the court ruled that states could regulate against partial birth abortions. There is nothing in the Constitution that prevents states from doing so. The only thing standing between states and regulation of abortion is the case that every honest legal scholar accepts is sheer sophistry: Roe v. Wade, which bases itself on emanations and penumbras. Seriously.
But Dow goes even further afield. He suggests that a 2007 ruling striking down a Seattle school district’s racially-non-neutral plan to achieve greater integration was unconstitutional--which, of course, it was, since statutes that do not treat the races equally are blatantly unconstitutional. But according to Dow, this is some sort of grievous crime.
And that’s not the last of the Roberts Court’s grievous crimes. In Citizens United, Dow says, “the court struck down a popularly supported, bipartisan effort to place limits on the ability of the wealthy to dominate political discourse.” Who cares whether a statute is popular or bipartisan? That has no impact on its constitutionality! But for Dow, the outcome justifies the means – if corporations are restricted and that infringes on the First Amendment, at least the ideals of socialism will be forwarded.
So what’s Dow’s fallacious argument about Obamacare that is so utterly convincing that any justice who disagrees must be impeached?
It’s sophistry. Worse, it’s idiotic sophistry. He writes:
Congress’s authority in passing the law rests on an elementary syllogism: You don't have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it.
Well, no. First, car insurance is state, not federal – the federal government can’t force you to purchase car insurance, at least not so far.
Second, once you choose to do something, government can regulate how to pursue that behavior (at least on the state level). But government cannot force you to make the choice. If you go to the hospital, government can regulate how you pay for your medical care. But long before you ever choose to go to the hospital, you’re supposed to pay for a good or service you hope never to use – and can choose not to use. If we don’t draw that distinction, as the justices pointed out, the government can force you to buy broccoli, since you will inevitably eat.
But now Dow goes for the kill. The argument against Obamacare’s constitutionality, he says, is basic: “it boils down to an argument for allowing the poor to die.” His illogic goes something like this:
(1) Critics of Obamacare say we only have to pay for everybody else because of a regime of laws that force hospitals to treat people who come into emergency rooms without paying;
(2) We can dump those laws, and dump the social cost, so Obamacare is unnecessary.
This, of course, is not the argument at all. Whether or not those laws are on the books, Obamacare is unnecessary and unconstitutional. This is the King of the Straw Men. Nobody has argued this point, that Obamacare is unconstitutional because we could let people die in the street. Nobody has argued it because it is nonsensical and stupid (but not according to Dow, who says it is “sound”).
So, at the end of all of this mummery, we’re left with Dow’s argument: I like Obamacare. Therefore, it’s constitutional. Therefore, let’s impeach everybody who gets in the way.
With that sort of logic, he’s probably advising the White House.