Saturday, January 21, 2023

Why Jack Balkin is Kindling

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Andrew Koppelman

After Jack invited me to join Balkinization in 2007, he had to work pretty hard to get me to do it.  Resistance was foolish.  My work here led me to produce my two books on libertarianism – most recently Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.

     I became interested in libertarianism by accident.  In 2010 I was invited to give a presentation about recent constitutional challenges to Obamacare.  I hadn’t followed that litigation.  I looked at the objections and concluded that they were nonsense, as many other scholars did.

Then, to the surprise of many, two federal district courts declared the law unconstitutional.

I got upset.  The reasoning was flagrantly bad, manifestly driven by the judges’ political views.  So I wrote up my responses to those decisions and posted them on the blog.  More such decisions kept coming.  With only a few exceptions, judges appointed by Republicans accepted arguments that were inconsistent with nearly two hundred years of settled law.

Had I not had the privilege of easily publishing short, technical legal analyses, I wouldn’t have started working in this area.  But I did, and eventually, as the Obamacare litigation built up momentum, I became a prominent enough voice that Oxford University Press solicited a book, which became The Tough Luck Constitution and the Assault on Health Care Reform.

     In that book, I argued the judges – not just the district judges, but the right wing of the Supreme Court as well - were in the grip of a philosophy that was no part of the Constitution, but which they found so compelling that they felt sure it had to be in there somewhere.  (That happens a lot in constitutional argument.)  It rested on a weird understanding of liberty, which conjured up a right previously unheard of: the right not to be compelled to pay for an unwanted service.  If people wanted to go without insurance, it was tyrannical for the state to force it upon them.  Government, however, provides myriad services, paid for by taxes without asking whether the recipients want them.  The proposed “right” repudiated sources of economic security that most Americans depend on, notably Social Security and Medicare.  More broadly, the implication was anarchy.  Why should anyone believe there was such a right?

     As I learned more about the origins of this litigation, it became clear to me that its deepest source was libertarian political philosophy.  There were two fundamental objections to Obamacare.  One was that it expanded the size of government.  The other was that, while it concededly provided health care to millions who were doing without, it did so by raising taxes on prosperous people who had not themselves done anything wrong.

     I thought both objections repellent.  How could people believe them?  And they attracted unlikely fans.  In a revealing moment during the March 2012 Supreme Court argument over the constitutionality of the law, Solicitor General Donald Verrilli argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. 

Justice Antonin Scalia responded: “Well, don’t obligate yourself to that.”

     He was saying, in effect, that there is no real obligation to care for sick people who cannot afford to pay for their own medical care; that any assumed “obligation” is really a discretionary choice.  You can choose to obligate yourself or not.

     Verrilli replied that the Constitution did not “forbid Congress from taking into account this deeply embedded social norm.”  Scalia didn’t challenge that, but he still was not satisfied.  A bit later, he suggested that under the Constitution, “the people were left to decide whether they want to buy insurance or not.”  This would mean that any federally required insurance scheme was unconstitutional.  Scalia clearly did not mean that.  But then, why was he saying these things?

     The arguments against Obamacare frequently took a Manichean form: interference with market processes, in order to provide health care to those who could not afford it, was taken to be tantamount to Stalinism.  Our only choices are laissez faire capitalism or totalitarianism.  Many of those who made these arguments, I discovered, were entirely sincere.  They massively misunderstood Obama and what he was trying to do.  How could educated people be captured by such delusions?

I kept thinking about that after The Tough Luck Constitution was published in 2013.  So I found myself writing another book, digging deeper into the libertarian ideas that were the source of the trouble.  It turned out that they were dangerous, not only to efforts to provide health care to sick people, but to efforts to contain covid and prevent climate change.  And they contaminate other areas of constitutional law, notably the capacity of the administrative state to respond to these evils.

Professors like me aren’t active in politics.  We sit in our offices and write about ideas.  The important political work that we can do is clear up ignorance and confusion.  There was plenty of that here.  So I got an opportunity to make myself useful.  This is a public health announcement.  Bad political philosophy can kill you.

In short, lines of inquiry that were kindled by this blog have dominated my scholarship for some time now.  Working with Jack Balkin has sometimes led me to focus on disgust and heartbreak, but from now on I’m going to listen to him. 

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press).  Follow him on Twitter @AndrewKoppelman.

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