Notes From Babel

Archive for March 2010

Divine Sledge Hammer

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Justice Scalia has a noteworthy opening to one of this terms Supreme Court cases, Padilla v. Kentucky:

In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.

This reminded me of the following passage from Robert Bork’s The Tempting of America:

Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage.  I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them.  He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage.  It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse.  The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.

There is both truth and wisdom in this. There are all sorts of silly things that men might try to impose on his fellows.  And on the one hand, I believe there is some merit to the view that something we call “law” must actually abide by some general definitional standard in order to be rightly called such, and thus cannot be entirely arbitrary.  But for the most part, to say that the Constitution would prevent lawmakers from doing something like making all marriage illegal, or some such silly thing, expands the document beyond its rightful scope.  Our Constitution is a tool for reasonably like-minded people with a modicum of respect for traditions, personal virtue, and sensible laws.  It is not an instrument to corral miscreants and fools under a banner of order they implicitly reject.

Of course, in light of the pending challenges to Obamacare and the individual mandate, I have to point out that the Court’s interpretation of the Commerce Clause is the reverse problem, the abdication of judicial review as to a critical limiting clause of the Constitution.  The reason for the Court’s initial abdication in Wickard v. Filburn, a reaction to FDR’s court-packing threat, is perhaps understandable.  The Court’s continued playing out of a 60 year old game of Constitutional telephone, however, is less so.

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Written by Tim Kowal

March 31, 2010 at 10:19 pm

Wealth Care

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This is spot on.  I’m embarrassed I didn’t see this before:

So let’s ask the question the left never asks: how is it possible for an insurance company to pay for these giant medical bills? What makes it possible is a whole set of statistical calculations. For every person who needs open-heart surgery or chemotherapy, there have to be a certain number of other people who are paying their premiums but haven’t gotten seriously ill. If the insurance company has gotten its calculations right, the expenses for any one person’s catastrophic care are balanced out by the premiums other people pay “just in case.”

You can see how Obama’s demands undermine this whole system. To ask insurance companies to cover a patient after the tumor is diagnosed is to ask them to take on a known expense. Combine that with another Obama demand: that insurance companies can’t charge higher rates for those who are at higher risk of getting sick. So if insurance companies have to take on a known expense and can’t charge a higher rate for it, how are they going to pay for it? By raising everyone else’s rates, redistributing their wealth to the new freeloaders.

This isn’t insurance, it’s welfare. And that’s the whole point.

Right. That’s why you need a mandate — not only to cover the costs of emergency care for the uninsured, as Romney insists, but to squeeze premiums out of people (healthy young people, mostly) who probably won’t need care at all. And what if that’s not enough of a corrective to the “maldistribution”? Well, then you add some taxes and squeeze a little more revenue that way. Why, here’s a nice tax now that already has Obama pal Deval Patrick panicking about the job losses it’ll create within Massachusetts’s medical-device industry.

But I’m sure it’ll all work out for the best. And if it doesn’t, who cares? It’s here to stay. That’s how entitlements work, you mean conservative, you.

The Max Baucus video clip, in which he explains in his own words the glorious redistributionist effect of the Wealth Care bill, is also here.

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Written by Tim Kowal

March 26, 2010 at 12:31 am

Repealer’s Toolkit

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Written by Tim Kowal

March 22, 2010 at 10:56 pm

Posted in Health Care, Politics

As a Pessimist, I’m a Glass-Half-Full Kind of Guy

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Talking with a buddy at work today about ObamaCare, I realized I am not really the pessimist I sometimes make myself out to be.  I really want to believe it’s possible to get this thing repealed.  I really want to believe it’s possible to get it overturned in the courts as the egregious affront to the text of the Constitution that it is.  My friend, however, recites the fact that we have never overturned an entitlement program in our nation’s history.  That once folks start receiving their new entitlements, they will become vested rights, owed to them for the rest of their lives, and impossible to rescind—the same problem as with exorbitant public employee pensions.  That even if conservatives can overtake Congress this November, Obama would smugly veto any repeal that they might pass.

Intellectually, I’m a pessimist.  But like Fox Mulder, I want to believe.  It’s like every year how I swear off the Angels, who have disappointed me since I was a kid (except when they sneaked up on everyone in ’02).  I just don’t need the heartache.  And yet last year, I got caught up in the playoffs, and then found myself screaming at the bad umpiring and the Yankees generally through my television.

On balance, I think it’s a better way to be.  Understand in your head that the odds are against you.  But go right on acting as if you expect a victory.

Written by Tim Kowal

March 22, 2010 at 8:05 pm

Posted in Musings

Preparing for the Fight Ahead

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Those of us against the health care takeover will need to support attorney general candidates like John Eastman who have vowed to challenge the constitutionality of ObamaCare.  Also, sign the pledge to support candidates to repeal ObamaCare.  There is a long, uphill legal battle coming to preserve our freedoms and roll back the huge encroachment of federal power that took place tonight.

[Update: Malkin makes a list of AG’s preparing to join the fray.]

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Written by Tim Kowal

March 21, 2010 at 9:06 pm


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I rarely use this blog to vent, but it’s an outlet I now feel the need to use as the inevitable looms near on the federal government health care takeover.

I know some baby boomers who are in favor of ObamaCare because, well, because they are baby boomers: God bless them (after all, folks whom I respect, like my parents, rank among them), but they got theirs.  They lived high on the hog of American greatness following WWII, before the regulatory state clamped down as tight as it has on us Gen-X’ers and Gen-Y’ers; before city planners and the green squad roped off America’s open spaces and told us “you can’t build here”; before bright-eyed bubble-pushing economists gave us stock bubbles and tech bubbles and housing bubbles; before the trustees of our tax dollars opened the floodgates of bank bailouts and safety nets; and before government experimenters rendered our economy utterly indecipherable.

I generally don’t take politics personally, but ObamaCare is really hitting me at my most vulnerable.  I’m in between the “safety net” underclass and the “I got mine” upper class.  It appears that ObamaCare will cost well over $200 billion a year.  That money’s gotta come from somewhere, and I put exactly as much stock in Obama’s “not one dime” more taxes promise as I do his openness promise, his rendition reform promise, his signing statement promise, his fiscal responsibility promise, his “no pork” promise, etc.

So what am I left with?  I am lucky enough to have a good job that pays a salary that, in any other time, would be plenty to get me started toward buying a home, starting a family, and socking away for retirement. But the economy tanked just before my wife got her master’s degree, and she’s been unable to work her “back up” job as a substitute teacher since schools have cut their budgets as they are forced to pay ballooning pensions.  The government is doing its best to keep housing prices artificially inflated, and California’s dysfunctional legislature just increased this state’s lead as the highest taxed state in the union.   Making things worse, we live in LA county, where voters just voluntarily voted themselves another cent sales tax increase toward a new rail boondoggle.

Someone close to me is getting a slightly different treatment, as he’s currently undergoing an audit by the IRS.  Apparently, when he was working construction a few years back, he goofed and believed he could deduct the miles to and from work sites.  He’s now looking at having to take out a loan to pay back-taxes.  Meanwhile, his mother-in-law continues to collect welfare for what’s going on something like over ten years, despite getting “married” two years ago to an employed fellow.  They were careful not to actually document their little sham ceremony, in order that she could continue to collect from us suckers who actually pay taxes.

So there I am:  those who make less money want to take mine from me, and the Progressivist demagogues who’ve already got theirs want to help them do it.  I can now say that I know the feeling to suffer as a minority the humiliating privation of my God-given rights from a rapacious and pitiless majority.

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Written by Tim Kowal

March 21, 2010 at 7:57 pm

Posted in Health Care

The Swimming Song

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The wife and I have been watching the new show Parenthood.  It’s so-so, a near-exact take-off from the Steve Martin movie of same name.  But it introduced me to this Loudon Wainwright song, for which I will ever be grateful.

Written by Tim Kowal

March 21, 2010 at 7:30 pm