Notes On The Affordable Care Act and Its SCOTUS Review

The “relevance” of A to B is never apolitical.

In Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), Antonin Scalia of the SCOTUS ruled that the personal cultivation of marijuana for one’s own use in a state where marijuana is legal can be a Federal crime despite the right’s claim to be interested in “liberty”. He “reasoned” that marijuana cultivation for one’s own use in a state where marijuana is legal is “close enough” to “commerce” to give the Federal government legal authority.

Whereas in Morrison, 529 U.S. 598 (2000), the conservatives of the court said that the RAPE of a woman at Virginia Tech (the scene of violent shootings later on in 2007) by two members of the football team bore only an “attenuated” relationship to commerce.

Now, how does one measure the distance on a hypothetical undrawn mattering map? If Susan Brownmiller is right, then rape is a PART of interstate commerce, for women, in her analysis, learn to be subservient because of the threat of rape. My Mom flipped out when I brought a girl home whom I met on the subway, since my Mom found it terribly hard to have to ride the subway to a job in the Depression, and get bothered by gorillas.

Basically, the legal analysis is based on images and fantasy. On the one hand, white alpha males, such as football players at Virginia Tech, should, all other things being equal, be allowed to do their thing. Whereas marijuana cultivators and women going to work matter less.

This is an important issue, since this week the Supreme Court will hear arguments on Obama’s Affordable Care Act. One question is whether Congress’s Constitutional power to regulate “Commerce” includes the power to make people buy a product.

The white male discourse is of the slippery slope, that, as an absolute, there can be no exception to a Ninth amendment freedom not to buy something. That if an exception is made, why then, white alpha males will be forced to buy all sorts of crap they don’t want such as Hello Kitty watches or frilly panties.

Now, the problem with the slippery slope is that not all slopes are slippery. Many contain trees and rocks and stuff. We can reasonably say that this purchase is different, since if you do not buy insurance, hospitals will nonetheless try to fix your sorry ass if you assumed, while ski-ing, that the slope was slippery and impaled said sorry ass on a tree.

The legal psychology is IF we let the Constitution evolve, then all sorts of people will soon make a mess of it.

I’m afraid that this is how post-Sixties and post-Seventies males reason because if the biographies of George Bush and Clarence Thomas are a guide, they were part of a general degringolade in the 1970s, in which doing “anything” was a mark of maleness.

My fathers’ generation were innocents who naturally fell into line in World War II figuring that Europe or the Pacific, even in wartime, couldn’t suck much more than the farm or my grandfather’s construction sites, and besides, they’d received their draft notice. They treated women with natural respect, in my uncles’ and father’s case, as a marker of social class, unlike the gorillas on the NYC subway.

They went to Catholic schools, and thought of themselves as “gentlemen”. In the style of the Thirties, they dressed for school and office work in dark, three piece suits, ties and hats. They used sports to build their bodies and drain off energy. They could write serious papers such as my uncle’s A+ research paper on the Black Death.

In our German-American culture, they were mentored to drink with their parents at festive occasions: white wine, or mixed drinks. Strangely, beer played almost no role for Sud-Deutsche Catholics like my grandparents and my Dad. I never once saw my Dad drink beer, although Mom loved it. He always drank wine or cocktails.

But this is consistent with Theodore Adorno’s notes on drink in Minima Moralia. Adorno’s idea of a good time was wine in a cafe, not Oktoberfest, perhaps because, like my own forebears, he was a city man and not a Bauern, a peasant.

My father seemed never, ever, to have a problem with alcohol which is strange given that he did have serious depression. Never saw him drunk…not once.

Whereas George HW Bush’s eldest son found himself on his ass blowing coke and I came home from the library to find my brother and his friends tearing the place up. The whole “culture” of the 1970s being that it was manly to party hearty. If like me you were shy around girls and into art, then computers, you were a loser…a “nerd” until I joined the fun.

All of today’s Presidential candidates experienced this as privileged sons of the upper classes. Of course, they “matured” in a sense. Both George W Bush and I started running circa 1980, and, like me, Bush found that he liked it. This, and for Dubya, Laura Bush’s iron will caused him to have at least a veneer of self-discipline far later in life than my father and his brothers.

Others got religion and family as a package deal.

Nonetheless, they’d experienced the rather terrifying absence of any reason not to snort more and more coke and drink more and more shots. Through psychological transference (which is always selective) they now reason, selectively, that IF we give them an inch, then they will surely take a mile, boys, because they’d learned that if they gave themselves an inch, they would surely take a mile (boys).

Therefore they selectively imagine the Federal government as a party animal, rather like Edward Kennedy, or Dan Moynihan, a big, fat, self-indulgent Irish man thinking of new ways to spend the taxpayer’s hard earned money while hoisting a brew at Tommy Makem’s Irish Pavilion.

But when the states go ape, as they’ve recently gone ape, thinking of new ways of interfering with women’s lives, this is not considered a bender, it is considered virtue.

Your real addict often displaces. He quits smoking and starts to eat too much if he doesn’t take a look at the spiritual (not religious) hole he’s trying to fill (in the interests of honest disclosure, I’m still a Nicorette fiend who’s trying to quit).

Adorno saw, I think correctly, that if we have a modicum of beauty and meaning in our lives we don’t have to have another white wine. The one glass, with his Grete, after sharing a concert of Beethoven or Schubert, was enough…but note that the opportunity for him, and Grete, to sit in a civilized German or Austrian cafe was taken from him for many years by Hitler.

Such undamaged existence is now rare indeed. For me, an Evian and a coffee in Paris could more than suffice, but I do not live in Paris. I have instead the Starbuck’s at Hong Kong’s International Financial Center and I make do.

Otherwise men become addicted over and over again. In the case of the Affordable Care Act, it’s been pre-judged as the wrong kind of handout coupled with an onerous requirement that we buy health insurance. The addicts and codependents on the Supreme Court will bring arguments selectively to bear, claiming it to be their duty to “limit” government.

Which is of course absurd. As Joe Stiglitz, MIT economist and author of “The Three Trillion Dollar War” has pointed out, the Pentagon has no budget. If it needs money, it gets money, a Fortunate Son, indeed. Government is limited as regards human needs, unlimited as regards killing foreigners.

My American government is only limited as regards helping the poor and non-white and female since its founding charter was an agreement among white males to get along for a change. Which was progressive at the time. But, we need another Reconstruction, and we need another Sixties, to show that we can keep the Constitution and yet fulfill the promise: that “men” in “all men are created equal” was the broader meaning, and not the narrower.


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