THE CONSTITUTIONALITY OF THE PENDING

HEALTH CARE REFORM LEGISLATION A DEBATE

SPONSORED BY THE FEDERALIST SOCIETY CHAPMAN UNIVERSITY

SCHOOL OF LAWORANGE, CALIFORNIA

FEBRUARY 4, 2010

Moderator Introduction by:

Donald J. KochanAssociate Professor of Law

Chapman University School of LawOne University Drive

Orange, California 92866Phone: (714) 628-2618

Fax: (714) 628-2576kochan@chapman.edu

www.donaldjkochan.com

SIMPLICITY

• We must continue to explore health care legislative initiatives in forums like this, as the bills exhibit largesse that confuses not only citizens but legislators themselves. The U.S. Constitution is about 4,550 words, approximately 8 pages in a word processing document. The Declaration of Independence is 1,337 words, approximately 3 pages in a word processing document. These documents have simplicity in volume but are profound in effect and importance. Have we lost this ethic in modern legislation?

• In contrast, health care reform bills currently being considered are thousands of pages. Some say that the health care bills are excessively voluminous, incomprehensible, unending, not understandable, and unpredictable. Others believe the volume and complexity is necessary in dealing with such a complex and far-reaching facet of our economy.

Madison on Simplicity

and Limited Government“It will be of little avail to the people, that the laws are made

by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot

be understood. . . . if [such laws] be repealed or revised before they are promulgated, or undergo such incessant

changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known,

and less fixed? . . .• “In a word, no great improvement or laudable enterprise can

go forward which requires auspices of a steady system of national policy.”

James Madison, Federalist Paper #62

The Governmental Function

• It is perfect time to reflect on some of the wisdom of the Founders of this republic.

• Is health care a legitimate area for national policy and governmental mandates? Is it a proper exercise of power?

• Is redistribution a proper means to an end?

Madison on the Role of Government

“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to

every man, whatever is his own. . . . “James Madison, Property -- 29 Mar. 1792 Papers 14:266--68

The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).

Health Care Reform Cautions

• No doubt the issue of health care availability and affordability pulls at the heart strings and a noble GOAL – It is the MEANS for achievement that is at the foundation of the current debate.

• When phrased as a “health care crisis”, we can get swept up in

our sensitive sides and compassionate, caring nature. We can also become engulfed in alarm.

• Acceptance of increased government when in a crisis or out of

fear can transform the constitutional structure. And for that reason alone, careful consideration is always prudent.

ALARMISM?“The whole aim of practical

politics is to keep the populace alarmed, and hence clamorous to be led to safety, by menacing

it with an endless series of hobgoblins, all of them

imaginary.” –H.L. Mencken

POWER AND GOOD INTENTIONS

“Good intention will always be pleaded for every assumption of power . . . [T]he

Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to

govern well, but they mean to govern. They promise to be good masters, but they mean

to be masters.”--Daniel Webster

PASSIONS AND CONSTITUTIONAL CHANGE

“The Constitution is the rock of our political salvation; it is the palladium of our rights; . . . [but] when the

[government] pursues a favorite object with passionate enthusiasm; men are too apt, in their eager embrace of it, to overlook the means by which it is attained. These are the melancholy occasions when the barriers of the government are broken down and the boundaries of

the Constitution defaced.”

—Junius Americanus, 1790 Junius Americanus [pseud.], letter, N.Y. DAILY ADVERTISER, July 23, 1790 (quoted in CHARLES WARREN, CONGRESS, THE CONSTITUTION, AND THE SUPREME COURT 105 (1930)).

CRISES AND CONSTITUTIONAL CHANGE“[C]hanges less than revolutionary, but nonetheless changes, will be worked in the permanent structure of

government and society. . . . Alterations in the structure of a constitutional government may be wrought and

made permanent that do not represent the mature and collected judgment of the representatives of the

people, alterations that in their nature are far more difficult to disestablish than they were to institute.

Federalism and free enterprise will serve as examples of institutions easy to break down in crisis and infinitely more difficult to restore thereafter.” CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP 5

(1948).

And, What Role Interest Groups?

Interest Groups/Public Choice

And what role for interest groups? From special

provisions for particular states like those dubbed the

Cornhusker Kickback and the Louisiana Purchase to exemptions or special

provisions for labor unions, health care and insurance companies, longstanding

debates about pork pervade the discussion.

Concluding Thoughtsand Questions

In the end, health care reform tests our philosophy and principles of governance and the appropriate limitations of power in our

constitutional design. To paraphrase Ronald Reagan when discussing expanding social

programs and government control, we must be vigilant in our debate to ask whether an

embrace of health care legislation is “feeding the crocodile hoping he’ll eat you last.”

Concluding Thoughtsand Questions

• Is the attempt to reform health care a rational response to reality or a road resulting in

rationing and radical redistribution of wealth? • Are we on a journey towards justice or are we

sliding towards socialism?• Is health care reform a prescription for

prosperity and progress or a dangerous plummet towards the dissolution of

constitutional restraints on the proper exercise of governmental power?

SPEAKERS:

Ken Klukowski

Ken Klukowski is a D.C.-based attorney, consultant and journalist. He is a fellow and senior legal analyst with the American Civil Rights Union, a research fellow with Liberty University School of Law, a working group vice chairman for the Conservative Action Project, and an adjunct scholar at the Family Research Council. He covers the U.S. Supreme Court for Townhall.com, and is a contributor for BigGovernment.com and an online contributor for Fox News, as well as being published by numerous other outlets, including the Wall Street Journal, the New York Post, the Washington Times and the Washington Examiner. He has worked in several positions in government and for public-interest organizations, and currently writes, consults and speaks on legal, political and public policy issues. Klukowski’s work covers the full range of issues but focuses on the Constitution and the federal judiciary. He has represented various conservative organizations in writing amicus briefs in Supreme Court cases involving First Amendment and Second Amendment issues. His scholarly works have been published by Georgetown Journal of Law & Public Policy, New Mexico Law Review, George Mason University Civil Rights Law Journal, and the Yale Law & Policy Review, and have been cited in a number of respected legal journals and in court filings. He holds an undergraduate degree in business from the University of Notre Dame, studied history and political science at Arizona State University, has a seminary-level education in theology, and earned his law degree from George Mason University.

Professor Lawrence Rosenthal

After graduating from Harvard Law School, where he won the Fay Diploma and was an editor of the Harvard Law Review, Professor Rosenthal clerked for Judge Prentice Marshall of the United States District Court for the Northern District of Illinois and Justice John Paul Stevens of the United States Supreme Court. Professor Rosenthal entered the practice of law as an Assistant United States Attorney for the Northern District of Illinois, specializing in organized crime and public corruption prosecutions. Among other things, he brought the first racketeering case involving insider trading, and secured the longest sentence in the history of the district in an organized crime case (200 years). He subsequently joined the City of Chicago’s Department of Law, where he was Deputy Corporation Counsel for Counseling, Appeals, and Legal Policy. In that capacity, he argued three cases in the United States Supreme Court, and supervised a large volume of complex litigation as well as legislative as policy matters. To his great embarrassment, Professor Rosenthal was named by Chicago Magazine as one of “Chicago’s 25 Toughest Lawyers”. Since then, he tries to be nicer. Professor Rosenthal joined the Chapman faculty in the fall of 2005. He also continues to engage in litigation in the United States Supreme Court and other appellate courts, usually on a pro bono basis. Courses Taught: Civil Rights, First Amendment Law, Constitutional Argument, Criminal Law, Criminal Procedure and Local Government Law.

The Debate Continues . . .

Or will it end in an empty chamber? . . .

APPENDICES

Alexander Hamilton on Angels• Since Friedman mentioned angels, consider Alexander

Hamilton’s thoughts:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a

government which is to be administered by men over men, the great difficulty lies in this: you must first enable the

government to control the governed; and in the next place oblige it to control itself.”

Federalist No. 51 http://www.yale.edu/lawweb/avalon/federal/fed51.htm

“SOUVENT LA PEUR D'UN MAL NOUS CONDUIT DANS UN PIRE.”

“Often the fear of one evil leads us into a worse.”

THE INTERNATIONAL ENCYCLOPEDIA OF PROSE AND POETICAL QUOTATIONS FROM THE LITERATURE OF THE WORLD 269 (William Shepard Walsh ed., 1908) (quoting Nicolas Boileau-Despréaux, L’Art Poetique).

CRISES, EMERGENCIES, AND CONSTITUTIONAL CHANGE

“With every emergency, constitutional protections are reduced, and after the emergency is over, enhancement of constitutional powers is either maintained or not fully eliminated, so that the executive ends up with

more power after the emergency than it had before the emergency. . . . The other argument is psychological: During an emergency, people

panic, and when they panic they support policies that are unwise and excessive.”

Eric A. Posner & Adrienne Vermuele, Acommodationg Emergencies, 56 STAN. L. REV. 605, 626 (2003) (citing Editorial, A Panicky Bill, WASH. POST, Oct. 26, 2001, at A34; JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS 129-41, 157-61 (2000)).

FEAR AND THE DANGERS OF MISPERCEPTION

“Although the psychology of fear remains mysterious, some things about fear are relatively well understood. First, a fearful person typically misperceives, or acts as though he misperceives, the

magnitude of the risk. Fear interferes with normal Bayesian updating: one can feel fear about, and react disproportionately to, a threat that

carries with it small probability of harm. People also treat different but equally frightening risks as though they were the same.”

Eric A. Posner, Fear and the Regulatory Model of Counterterrorism, 25 HARV. J.L. & PUB. POL’Y 681, 684-85 (2002) (citing, among others, George F. Loewenstein et. al, Risk as Feelings, 127 PSYCHOL. BULL. 267 (2001)).

NEED WE JOIN THE HERD?

“Collective fear stimulates herd instinct, and tends to produce ferocity toward those who are not regarded as members of the herd.”

BERTRAND RUSSELL, An Outline of Intellectual Rubbish, in THE BASIC WRITINGS OF BERTRAND RUSSELL 73, 98 (1992) ().

FEAR DEFINED• “1a : an unpleasant often strong emotion caused by anticipation or

awareness of a danger b (1) : an instance of this emotion (2) : a state marked by this emotion; 2 : anxious concern: solicitude; 3 : a profound reverence and awe especially toward God; 4 : reason for alarm : danger; Synonyms : Fear, dread, fright, alarm, panic, terror, trepidation”

Merriam-Webster Online Dictionary

• “a distressing emotion aroused by impending danger, evil, pain, etc., whether the threat is real or imagined; the feeling or condition of being afraid. a specific instance of or propensity for such a feeling . . .”

www.dictionary.com.

• “Fear n. 1. dread, fright, foreboding, terror, panic, threat, horror, affright, apprehension, alarm, dismay, trepidation, consternation, disquietude, quaking, perturbation, qualm, anxiety, worry, concern, fearfulness, cowardice. 2. qualm, phobia, apprehension, source of anxiety, dread; nightmare, bugaboo, bugbear, specter, bogey; worry, concern, care. 3. reverence, awe, reverential regard, wonder, veneration, esteem, deep respect.”

ROGET’S THESAURUS 224 (Joyce O’Connor, et. al. eds., Ballantine Books 4th ed. 2001) (1984).

FEAR AND RISK

“Fear is a complex psychological phenomenon, and it sits uneasily with the rational actor premises of standard accounts of risk regulation. One can, without fear, recognize a danger, appraise the risk, and take steps to minimize the risk; this is a

purely cognitive response. But a person confronted by a danger frequently has an involuntary emotional reaction. The fearful person experiences a narrowing of attention toward

the threat and a disagreeable feeling that he can alleviate only by yielding to the urge to flee.”

Eric A. Posner, Fear and the Regulatory Model of Counterterrorism, 25 HARV. J.L. & PUB. POL’Y 681 (2002).

THE ONLY THING WE HAVE TO FEAR IS FOLLY

• “So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself – nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

FRANKLIN D. ROOSEVELT, FIRST INAUGURAL ADDRESS (March 4, 1933), reprinted in THE ERA OF FRANKLIN D. ROOSEVELT, 1933-1945: A BRIEF HISTORY WITH DOCUMENTS at 39, 40 (Richard D. Polenberg ed., Palgrave Macmillan 2000).

• “The oldest and strongest emotion of mankind is fear, and the oldest and strongest kind of fear is fear of the unknown.”

HOWARD PHILLIPS LOVECRAFT, SUPERNATURAL HORROR IN LITERATURE 12 (Courier Dover Publications 1973).

• “In politics, what begins in fear usually ends in folly”

SAMUEL TAYLOR COLERIDGE, SPECIMENS OF THE TABLE TALK OF SAMUEL TAYLOR COLERIDGE 111 (1836).

FEAR, PANICS, AND CONTAGION

“[F]ear is contagious . . . Panics can have powerful psychological and physiological consequences:

people fall ill when other people fall ill as a result of false beliefs about exposure to toxic agents.”

Eric A. Posner, Fear and the Regulatory Model of Counterterrorism, 25 HARV. J.L. & PUB. POL’Y 681, 685 (2002) ((citing, among others, Steven P. Schwartz et al, Environmental Threats, Communities and Hysteria, 6 J. PUB. HEALTH POL’Y 8, 63- 65 (1985)).

MARKETS AND PRIVATE PROPERTY

“Every individual is continually exerting himself to find out the most advantageous employment for whatever capital he can command. It is his own advantage, indeed, and not that of society, which he has in view. But the study of his own advantage

naturally, or rather necessarily, leads him to prefer employment which is most advantageous to the society . . . . [H]e intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no

part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. “

ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS, bk. IV, ch. 2, 397, 399 (D.D. Raphael ed., 1991) (1776).

• Because private property rights encourage exchange, and exchange permits specialization through the division of labor, the market works to ensure that most property (including skills) is put to its highest and most economically beneficial use.

(See F.A. HAYEK, LAW, LEGISLATION, AND LIBERTY, VOL. 3 (1979); LUDWIG VON MISES, HUMAN ACTION: A TREATISE ON ECONOMICS 257-326 (3d rev. ed. 1963). See also RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995); MILTON FRIEDMAN, CAPITALISM AND FREEDOM (1962).

(See BRYAN T. JOHNSON & THOMAS P. SHEEHY, 1996 INDEX OF ECONOMIC FREEDOM (1996). Johnson and Sheehy's empirical study “demonstrates unequivocally that countries with the highest level of economic freedom also have the highest living standards.” Id. at ix.)