Of Broccoli, Health, Power and Austerity

Yesterday's New York Times featured an article describing how a committed group of libertarians had managed to frame the debate concerning the constitutionality of Obama's health care law around the question of whether the government has the power to make people if not eat at least buy broccoli.

Because whether the state has the power under the commerce clause to force people to purchase insurance is at the heart of the of question of its constitutionality, one sees Obama supporters asserting that, yes, the state does indeed possess this coercive power, while at the same time making efforts to distinguish the purchase of health care from other commodities.

While reading the story at a cafe, I imagined a scenario unfolding on the sidewalk outside involving a woman walking her dog. It was a very handsome dog. And a man stepping along in the other direction, happening to notice this very handsome dog, crouched to pet it, remarking to the woman that this is just such a fine dog indeed. After a few pleasantries and questions concerning the dog were exchanged, the man stood to his full height and offered the woman $1,000 for the dog. Scoffing at this, the woman declined and announced that she had to be on her way. Intent on owning this dog, however, the man upped his offer to $10,000. Scoffing a little less now, the woman still declined. Fine, the man countered, I will give you one million dollars for your dog. Still, the woman declined. This dog is not for sale, she said. Some things are just not for sale, OK? But you are interfering with free trade, complained the man. I don't give a damn, the woman replied. Some things are just not for sale, you got that? And at that she walked away.

As capitalists intent on privatizing everything they can, and creating new "markets" thereby, the Democrats or the Republicans should not be expected to adopt the position of our hypothetical dog walking lady that some things are not for sale. To be sure, Republicans and Democrats alike are selling off all sorts of valuable publicly owned resources to private hands, from highly valuable federal lands to mineral rights, and water rights for fractions of their market value. Just this week the New York Times ran a story of how Bloomberg is in the process of selling all of the city's parking meters (which provide a tremendous amount of consistent revenue) for a fraction of their actual price. It is interesting, to say the least, to observe how the at least nominally collectively owned resources of our society, the common good, are being privatized.

Perhaps it goes without saying that if the Democrats had wanted to actually help people and not just business by maintaining health care as a profit-making commodity in the first place, their law would not be vulnerable to this sort of attack. Of course, even if they had used their former congressional majority, and Obama's early political popularity, to push through a sort of medicare-for-all type of universal health care program (which they obviously did not want to do), the Republicans would no doubt challenge its legality on some other constitutional ground.

That we are witnessing and being subjected to a course of economic austerity is a simple fact. If not losing their benefits, public sector employees are losing their jobs altogether. Public programs are being cut, public schools are being privatized in a land grab that hearkens to the Enclosure Acts. Such cuts - or sales - are necessary, we are told. At the same time we see a military larger than ever, waging endless wars at tremendous human costs and financial costs as well. We see the largest corporations, and the wealthiest sectors of society, being all but excluded from paying taxes. The list goes on and on. Yet, no one seems to ask: if we really do need to be so austere, then maybe we should stop all this military spending. And of the military we have at our disposal, perhaps we could employ it to fix our infrastructure instead of occupying large swaths of the world. Such questions, however, fly in the face of the 'reality' within which we live. As such, such things just make no sense.

While the U.S. Constitution is open to various interpretations, only a few interpretations fit within the mainstream of constitutional interpretation - many of which these days hold to the extremist bent seeking to push legislation in this country to its pre-New Deal position. We must not forget, though, that while the Constitution is the law of the land, it itself is governed by certain meta-norms. For example, the maxim nemo est supra legis, that no person is above the law, is a standard, overarching meta-norm that governs the constitution. Another such meta-norm is salus populi suprema lex esto - the health of the people is the supreme law.

If, as the maxim declares - and this maxim has been cited countless times by state supreme courts throughout the land, as well as by the U.S. Supreme Court in numerous cases - the health of the people is the supreme law, then that which is against the 'health of the people' is against the law. That is, if there are conditions that are against the health of the people, then these conditions need to be rectified in order to comply with the supreme law. In other words, it is the role of a society - of self-government - to create the conditions of health. So how do we begin to discuss these conditions? For one thing, those things necessary for producing and reproducing conditions of health should not be for sale. They should be outside of commerce because there is a profound conflict of interest between what is required for health, and what is required for profit.

In the context of the debate concerning health care, it would seem a pretty uncontentious thing to remark that not having access to health care is hostile to the Health of the People. In order to conform with the law, then, that condition needs to be rectified, that absence needs to be rectified through the supplying of such care - and not at a price. It must be free. For there is a difference between supplying something and selling something. Indeed, selling something - making it conditional on an exchange - is to erect a barrier between the thing that is supposed to be supplied. That is, it is not supplying it at all. So, while the conclusion of the hygiecratic argument for why it is illegal to pay for health care may be similar to that of others, the argument and the reasoning is significantly different, with significantly different ramifications.