John Judis: If the Disinterested Judiciary Rejects My Ideological Interpretation of the Commerce Clause, Then Disinterestedness Itself Will Collapse, and Maybe We'll Have a Civil War. Wait, What?

The New Republic's John Judis has a long, interesting, and wrong-headed essay out defending the notion of "disinterestedness" from attacks by both left and right. The condensed thesis:  

American democracy has long depended on institutions that behave [disinterestedly]. And not just the courts: It's also the much maligned "mainstream media" of The New York Times, The Washington Post, CBS, ABC, and NBC, as well as the older think tanks and policy groups, like the Brookings Institution and the Council on Foreign Relations. All of these institutions have traditionally rested their laurels on disinterested judgment. They might not always succeed, but it's the standard they set for themselves. And, when they do meet it, [...] it's as if a cool breeze has blown through the overheated landscape of American politics.

In the last few decades, however, first the left and now the right have trained their sights on this realm of disinterestedness, seeking to discredit and undermine it. Recently, these attacks have seemed to increase. The result is that, today, a very basic feature of American democracy appears to be in peril.

Then follows some nostalgia for institutions that "saw themselves as providing direct guidance to government and educating the public about national and world affairs," some criticism of New-Left skepticism of authority, then a broad claim that conservatives took that ball and began running with it in the 1970s, culminating in the rise of Fox News and the attempts to defund National Public Radio and so on. There are plenty of questionable claims and assumptions along the way about what comprises (and who gets to determine) "disinterestedness," but I think the most illustrative contradiction comes from Judis himself:

[I]n trying to enlist the courts in their effort to repeal Obama's health care plan, conservatives have resorted to legal obscurantism, introducing a distinction between "activity" and "inactivity" (which does not appear in the Constitution) to argue that the federal government doesn't have the right to impose a penalty on the "inactivity" of failing to buy health insurance. [...]

Will this challenge to disinterestedness fade with time? [...] I certainly hope so, because, if it does not, we could be looking at a political system that begins to resemble that of the late nineteenth century, with its sharp and seemingly unresolvable clashes between different groups in American society. The next big test will be the Supreme Court's ruling on Obama's health care plan. If the court rejects the plan on the kind of spurious grounds that its opponents have endorsed, then it will have abandoned its historic commitment to disinterestedness. And American democracy will be in very big trouble.

Judis is hardly the first commentator to flatly assert that there is no respectable legal argument against a law that is so far batting just .500 .600 in court challenges, but he's probably the first to do so in the context of declaiming ideological attacks against the judiciary.

As for his presumably disinterested judgment that the case against is "spurious" and depends on "legal obscurantism," Judis might want to read his own magazine–Obamacare cheerleader Jonathan Cohn, who disagrees with the Commerce Clause objection, nonetheless characterized it this way: "Like many good constitutional arguments, the argument can be put a lot more simply: If the government can penalize you for not buying insurance, can it also penalize you for not buying a television or a GM car?" Not so obscure, that.

This is ultimately why the disinterested mediators of John Judis' fantasy life have been consistently bleeding mindshare for a half-century now. In their exalted role as patriotic arbiters of public policy and policemen of discourse, these allegedly impartial clergy have made predictable and alienating errors in judgment. All it takes is being on the wrong side of one argument to see just how paranoid and derisive centrists can be toward people who disagree with them. This goes for anti-TARP nihilists and anti-drug warriors alike. The New Left had it right: being the Best and the Brightest is no bulwark against catastrophe; in fact it can be a short cut.

Some Reason.tv legal obscurantism below:

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  • kilroy||

    "consinstently"?

    I like it!

  • Matt Welch||

    Argy-bargy! Thanks, and sorry.

  • Bucky||

    "consistently bleeding mindshare" whew...
    like George Carlin said about a shit fit, "A shit fit, glad I wasn't there!"

  • PIRS||

    "It's also the much maligned "mainstream media" of The New York Times, The Washington Post, CBS, ABC, and NBC, as well as the older think tanks and policy groups, like the Brookings Institution and the Council on Foreign Relations. All of these institutions have traditionally rested their laurels on disinterested judgment."

    LOL!

  • MNG||

    I think most of those institutions try to be disinteresed. They often fail due to ignorance more so than intent (not knowing much about conservatives they tend not to focus on conservative stories or angles on stories), but they seem to try. Surely you don't find the NYT or NBC to be as flagrantly biased as, say, Foxnews or the Washington Times, or National Review or Mother Jones?

  • Robin||

    Surely you don't find the NYT or NBC to be as flagrantly biased as, say, Foxnews or the Washington Times, or National Review or Mother Jones?

    Holy Oblivious Batman!

  • MNG||

    So you really find the New York Times to be as biased as Mother Jones magazine? Well, I guess like beauty these things are in the eye of the beholder, but that strikes me as like thinking Frances McDormand is as attractive as Nicky Whelan.

  • The Gobbler||

    MNG. Do yourself a favopr and read the WSJ's The Best of the Web Today for a few weeks. Then get back to us.

    http://online.wsj.com/search/a.....-doc-type={Best+of+the+Web+Today}&collections=wsjie/archive

  • The Gobbler||

    The squirrels hate the link, but it is not hard to find in the Journal.

  • Batman||

    Look out Robin, it's a trap!

  • PIRS||

    "as, say, Foxnews or the Washington Times, or National Review or Mother Jones?"

    MNG,

    These are very different KINDS of organizations. National Review and Mother Jones, and indeed Reason Magazine do not even PRETEND to be unbiased. They admit to having a point of view. Washington Times, I have not read it in a number of years. In the 1990's I subscribed to a "Weekley Edition" I don't know if that still exists. It was a mixed bag. It had some religous articles that clearly reflected the Church's viewpoint but also it had a larger number of honestly "neutral" articles. It reminded me a lot of the Christian Science moniter in that regard, just with a different institution backing it up. Fox News? That depends upon the program. "Fox and Friends" is kind of like Good Morning America with a rightwing bias but tripping on acid. There are clearly several programs hosted by Beck, O'Reilly, Huckabee etc. that do not even pretend to be unbiased. They ADMIT to having their own perspective. But the news programs such as Fox Report etc. are a differnt matter. They DO try to be biassed. If the NYT & Co. are trying to be disintrested they are not doing a very good job of showing it.

  • PIRS||

    EDIT: "Fox Report etc. are a differnt matter. They DO try to be biassed. If "

    Make that they do try to be UNBIASED.

    Sorry for my spelling errors too ....

  • MNG||

    You're answering a different question than I asked. I asked you do you find the NYT and NBC to be just as flagrantly biased as Fox or Mother Jones. You seem to be acknowledging that they are not because you say "well, they are different because they admit it..."

  • Federal Dog||

    "I asked you do you find the NYT and NBC to be just as flagrantly biased as Fox or Mother Jones."

    The Times is nothing but the Democrat Party fund raising letter. Its unreliability has been documented for decades.

  • PIRS||

    Yes, they are just sneakier in hiding it. Part of the bias is in the filtering process and placement of articles. An article in page 1A is far more likely to be read by most readers than an article on page 7D. One of the great things about the Internet (while it is still relatively free) is that search engines enable savvy readers to search for information they WANT to read faster. On the Internet being on page 1A or 7D does not matter quite as much. If anything matters at all it might be Google rankings but even that is starting to matter less in the age of RSS feeds etc.

  • MNG||

    Er, are'nt you admitting they are not as flagrantly biased when you say they are just 'sneakier' at it?

  • PIRS||

    Yes, but this does not help your larger point. Oxford defines flagrently as "(of something considered wrong or immoral) conspicuously or obviously offensive" Just because something is not obvious does not mean it is not there. In face, if I am going to consume bias I would prefer knowing ahead of time what that bias actually is. That way I can be prepared and filter out some of the bias for myself. If I read Mother Jones I know what I am getting. If I listen to Rush Limbaugh I know what I am getting. Reading the New York Times is less obvious for many people - but it is there nonetheless.

  • MNG||

    I dunno, I guess I actually prefer bias that is not embracing itself over that which is. Not only do I think the latter acts as its own brake on the level of bias but it is at least the homage vice pays to virtue...

  • PIRS||

    "Not only do I think the latter acts as its own brake on the level of bias but it is at least the homage vice pays to virtue..."

    I do not agree with Glenn Beck on everything but I admire him in many ways. One of the reasons I admire him is his self-deprecating honesty. He is honest about what he is and what he is not. He is honest about his former life when he was involved heavily in alcohol and drugs. His own back-story plays a large part in his programming. You see, that helps his regular listeners such as myself understand more about where he is coming from. What he sees as important may not be what I see as important but at least I understand his point of view. Some semi-anonymous author in the New York Times is a different matter. Why did this editorialist present this story about Libya the way he did? Was that pressure from the newspaper’s management? Was that his own perspective? Or maybe he has relatives working in Libya and is concerned for their safety? I, as an individual reader, do not know the whole back-story. I would prefer to see the fnords.

  • MNG||

    Have you ever considered that someone like Beck might carefully craft his 'backstory' and even what appear to be his positions on things? I mean, you're only seeing the presentation in both cases.

  • PIRS||

    I have read about his life from sources other than Glenn Beck.

  • ||

    The NY Times isn't biased. They covered the 'kill squad' story back when it was called Abu Ghraib six years ago. Been there, done that.

  • ||

    I dunno, I guess I actually prefer bias that is not embracing itself over that which is.


    So, you'd rather have your bias palmed off to you as unvarnished, objective truth.

  • ||

    Except there is a distinct difference. Someone acknowledging that their view is a perspective is in itself less biased than the person telling you their view is the unbiased universal truth.

  • ||

    Pew media center -not any sort of conservatives there, FTR - did a study, and found only one network was even REMOTELY unbiased:

    FOX.

    FOX was dead neutral, all others were overtly left-biased by at least a 2:1 margin.

    You lefties hate fox because it doesn't sing your com-party line.

  • ||

    You also have to compare apples to apples. O'Reilly, Beck and Hannity are opinion shows, not news shows. Yes, they are biased, but no more than Krugman, Tom Friedman or Charles Blow.

  • JJ||

    They just want to rape you, not murder you or anything! I mean really, turd sandwich is nothing like giant douche. It is perfectly fine to really suck, just a s long as you don't REALLY suck. Got it.

  • MNG||

    So you don't differentiate between rape and murder?

    I hope you never get jury duty.

  • JJ||

    No genius, the point is both rape and murder are horrible. Totally absolving some for being less horrible is not differentiating, it's excusing. I find it offensive that the "unbiased" media (NYT and NBC) do the heavy lifting for the left. However, that does not excuse FOX for espousing right wing group thought on their "news" programs. Being flagrantly biased under the pretense of objective journalism is the problem here.

  • MNG||

    Well, sure, we'd all like to see even more objectivity, but what I am criticizing is conflating the less (but perhaps still) egregious with the really egregious, like equating rape and murder...

  • Hyphenated American||

    Well, but it's not like rape-rape. Right?

  • Zeb||

    I would much rather be raped than murdered, any day. Not a good parallel.

  • The Gobbler||

    Even if the rapist were Steve Smith?

  • STEVE SMITH||

    STEVE SMITH RAPE MAKE YOU WISH YOU WERE DEAD.

  • MNG||

    "I would much rather be raped than murdered, any day. Not a good parallel."

    The way you jumped into that makes me think you might not mind the former at all...

    And, er, that was kind of my point...

  • ||

    Actually, I think that National Review and Mother Jones are paragons of opinion-free journalism compared to the New York Times, which has been a big campaign press release for Obama for several years now.

    I'm being serious. You'll actually see Mother Jones criticizing Democrat politicians, and National Review nailing Republican proposals. They have their -- clearly stated -- ideological approaches, but neither publication is simply a partisan rag in the way that NYT has been.

  • MNG||

    If I were to link to NYT articles critical of Obama and his administration would you acknowledge you don't know wtf you are talking about?

  • Pip||

    Go masturbate elsewhere.

  • MNG||

    You see, it's insightful lads like this that find the bias in the NYT=that in Mother Jones or Fox news.

    Reason enough to find that claim dubious one might think.

  • ||

    MNG - if you honestly see the NYT as more objective/unbiased/whatever than Fox news, you are truly seeing through partisan lenses. Note that's not a claim that Fox is objective or unbiased.
    -K

  • Tony||

    If you see them as equally biased, you are seeing through a partisan lens--the very one FOX News has been so diligent in providing for you.

    If they can't suck you in totally, at least they can make you think they're just the other side of the journalism coin. Works in their benefit either way.

  • ||

    Actually I can say I've never been a regular consumer of Fox News. Probably have had it on 5 times since the beginning of the year - and that's being generous. Don't really think I've been 'suck[ed] in' at all. But the idea that the NYT is an objective (or more objective new source) than Fox News is laughable. Both are partisan, mostly in the service of existing power structures.
    -K

  • Pip||

    "You see, it's insightful lads like this that find the bias in the NYT=that in Mother Jones or Fox news."

    citation needed, asscunt

  • ||

    The NYT is biased, we saw that well enough during the last Bush administration given their frankly terribly reporting on WMD claims in Iraq, etc. The bias, hmmm, is "mainstream" though - it respects to a great deal "reliable" and "inside" sources.

    So the issue is what does it mean to be "disinterested" - what clusters around this idea? That isn't value neutral nor is it neutral regarding the sorts of ideas that are of use as well as people.

    Jesse Walker gets at this in some ways when he talks about the "paranoid center."

  • Hyphenated American||

    I distinctly remember Rush Limgaugh critisizing president Bush for the drug bill. I guess we can agree that NYT and Rush Limbaugh are same - except, of course, Rush is smarter and funnier.

  • PIRS||

    Agreed. Sean Hannity is the closest thing on the Right to the NYT in the sense that Sean Hannity is clearly in the pocket of the GOP establishment. I have heard him go round and round trying to defend as “conservative” some proposal by a Republican politician that is clearly not “conservative.” He tends to defend Republican establishment types in a way neither Glenn Beck nor Rush Limbaugh do. Hannity is in the bag for the GOP. They NYT is in the bag for the DNC.

  • MNG||

    I just want to get this straight. If I link to a bunch of NYT articles critical of the DNC you will, say in all types, declare you did not know wtf you are talking about?

    See, I doubt you would take that bet, because you know it would not take long to provide. And that's kind of a big hole in your hyperbolic pronouncements...

  • PIRS||

    Read my post above. Maybe this was a cross post. In any case read this : PIRS|4.18.11 @ 4:52PM|#
    Yes, they are just sneakier in hiding it. Part of the bias is in the filtering process and placement of articles. An article in page 1A is far more likely to be read by most readers than an article on page 7D. One of the great things about the Internet (while it is still relatively free) is that search engines enable savvy readers to search for information they WANT to read faster. On the Internet being on page 1A or 7D does not matter quite as much. If anything matters at all it might be Google rankings but even that is starting to matter less in the age of RSS feeds etc.

  • MNG||

    So, unlike Hannity or Mother Jones one can actually find many cases where they portray their favorites unfavorably. But they are sneaky at it and put it in later pages, so they are just as bad.

    Oooooookay!

  • PIRS||

    "So, unlike Hannity or Mother Jones one can actually find many cases where they portray their favorites unfavorably. But they are sneaky at it and put it in later pages, so they are just as bad."

    Does this confuse you? How many people pick up a newspaper and read every single article in it?

  • MNG||

    So again, one outlet is not critical of their favorites and the other is actually critical of their favorites but gives that criticism less prominence and the two are equally biased?

  • PIRS||

    "So again, one outlet is not critical of their favorites and the other is actually critical of their favorites but gives that criticism less prominence and the two are equally biased?"

    You cannot compare these two institutions in the same way. Sean Hannity for example [and, no, I do not respect Hannity in any way] has a radio program that is a few hours long and a television program that is an hour long. Subtract the commercials and that is roughly two and a half hours of programming. Subtract callers and you shorten the time he is speaking his own prepared commentary considerably. One thing about radio is that not everyone tunes in at the same exact time. Some people listen in the car for example. Radio hosts will often repeat the more important stories for the benefit of these new listeners. This format is not even remotely comparable to a large newspaper with several sections.

  • MJ||

    "...the other is actually critical of their favorites but gives that criticism less prominence..."

    If they have favorites and order their stories based on that favoritism, then they are not disinterested, by definition.

  • Pip||

    fap, fap, fap, fap, fap, fap, fap, fap, fap, fap, fap, fap, fap

  • Tony||

    You are all the evidence we need to continue valuing elite news institutions telling us what we should care about. The editorial judgment of an institution like the NYT is just superior to your own when deciding which fire-breathing right-wing rags you want to focus on.

  • Federal Dog||

    "you are all the evidence we need to continue valuing elite news institutions telling us what we should care about."

    I am going to give you a point for being sufficiently candid to admit that you need institutions to tell you what you should care about.

    The rest of us do not share your problem. And make no mistake about it: Looking to anyone else to tell you what to think is a big problem.

  • PIRS||

    "I am going to give you a point for being sufficiently candid to admit that you need institutions to tell you what you should care about."

    +999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999999

  • Tony||

    As I am not all-knowing, I must go to reliable sources to get facts about the world. Sources are reliable when they demonstrate themselves to be so. That doesn't mean they always get it right, but they certainly do vastly more often than those with a political agenda and a lack of interest in objectivity--such as any place you probably go to for news.

  • MNG||

    Yeay, I'm sure Federal Dog never lets any of his beloved Brietbartian news sources tell him what to think!

  • ||

    Critical from the left or right?

  • ||

    "Critical from the left or right?"

    That was supposed to be at MNG asking about linking to a bunch of articles in the NYT critical of the DNC.

  • MNG||

    Both. Even looking at just the editorials the two are not equivalent.

    http://www.hks.harvard.edu/pre.....omasky.pdf

  • ||

    Well from the tone of that paper, it's pretty clear where the author's biases lie. Since his raw numbers seem to indicate a fairly balanced perspective (without even addressing the question of whether I trust his judgement on the raw numbers), much of his conclusion rests on his subjective definition of the 'tone' of the papers. With lines like '...showing that the conservative pages, which caviled incessantly about those issues,' (that's in a sentence designed to show he was bending over backwards to be generous to the conservatives), I'm pretty sure I don't trust his judgements. Got anything a bit more objective? Like actual stories?
    -K

  • ||

    See, I doubt you would take that bet, because you know it would not take long to provide. And that's kind of a big hole in your hyperbolic pronouncements...

    No, MNG. It's because all of us recognize that generalizations are intended to capture a trend in facts or data rather than explain every data point. I'm sure if I looked, I could find countless examples of Charlie Sheen acting like a sane, rational human being. That doesn't mean he's not batshit crazy. Likewise, showing examples of the NY Times criticizing the administration (and not from the left) doesn't mean that they aren't in the bag for them.

  • Tony||

    You are completely delusional.

  • The NYT||

    We told Tony to think that.

  • Tony's Thick Skull||

    Tony doesn't think.

  • cynical||

    "be" or "appear"?

  • ||

    Surely you don't find the NYT or NBC to be as flagrantly biased as, say, Foxnews or the Washington Times, or National Review or Mother Jones?

    The NYT, definitely. NBC, not quite so much, since they did can Dan Rather after he went on the air with forged documents to try to scuttle Bush's election prospects.

    -jcr

  • Hyphenated American||

    It was CBS, not NBC

  • ||

    Oops, my bad. Those legacy-media companies are interchangeable.

    -jcr

  • ||

    Yes, the NYT is biased. From the days of the liar Walter Duranty to today.

  • SteveM||

    Surely you don't find the NYT or NBC to be as flagrantly biased as, say, Foxnews or the Washington Times, or National Review or Mother Jones?

    How unintentionally revealing.

  • Warty||

    And American democracy will be in very big trouble.

    I know that's supposed to be a very Bad Thing, but I'm having a hard time seeing why right now.

  • MNG||

    Some of the arguments on the earlier commerce clause thread are downright laughable. Some of my favs:

    * because it says it applies to "commerce..among the states" and not people it does not apply to regulate people engaged in commerce in any way. As if it was supposed to grant a power to make rules for the State government of Maryland trading with the state government of Idaho.

    * that the power "to regulate" didn't mean 'to make rules concerning' at that time (so how does one explain things like "To make Rules for the Government and Regulation of the land and naval Forces"?)

    * that it was only meant to abolish tariffs by states against other state's commerce (so what is this about: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports?"

    I can see arguing Wickard and Raich were wrongly decided, but it's hard to see how you can strike this down without striking those down. I guess you could hang it on the activity/inactivity distinction and argue 1. that it is not covered by Wickard and 2. like Lopez such a distinction must be made to limit federal power under the clause or the overall purpose of limited, enumerated powers is gutted. The likely responses to those are 1. Wickard dealt with a person choosing to remain outside an interstate market and 2. Lopez itself (the economic/noneconomic distinction) acts as a brake.

  • Dick Fitzwell||

    That you obviously don't understand the difference between Article One Sections 8 and 10 tells us all we need to know about your constitutional ignorance. Thank you for being so proud to display it.

  • MNG||

    Er, one enumerates powers of the federal congress and the other prohibits actions by the states. Your point though seems less clear, maybe equally to yourself perhaps?

    I can help. My point is that why would Art. I give Congress in a provision the single power to prevent something done by states which is already prohibited to them in another section?

  • Dick Fitzwell||

    Because it doesn't prevent the states from imposing a duty on imports and exports.

    If one state's duties for maintaining inspections are deemed to be unfair, Sec. 8 gives Congress power to regulate.

    Try to read it slowly and thoroughly. It helps with comprehension.

  • MNG||

    "If one state's duties for maintaining inspections are deemed to be unfair, Sec. 8 gives Congress power to regulate."

    Hahahaha!

    We have a new winner. The Commerce Clause actually grants a power to enforce provisions of Article I, Sec. 10. While to the untrained eye it might seem to grant Congress the power to regulate commerce among the states it actually was granting a power to regulate unfair inspection fees, fees that Sec. 10 already prohibited from being any more than "absolutely necessary for executing its inspection laws".

    Incredible. Usually straining that hard results in hernia dude.

  • MNG||

    I mean, imagine how far off the Marshall Court was in Ogden. Yeah, they were within a generation of the actual ratification, but those silly ninnies didn't realize that the commerce power was all about regulating unfair state inspection fees!

  • Dick Fitzwell||

    Ok. Read the clause again and tell me where it prohibits states from imposing duties on imports and exports.

  • Zeb||

    Perhaps not a sound legal argument, but I think that a rather simple reductio ad absurdam shows why the mandate should not be considered constitutional.
    Suppose the commerce clause means that this sort of mandate is allowed. Then any other mandate for individuals to buy some product is also allowed. While not logically contradictory, this seems to me so absurd on its face that the whole line of reasoning should be discarded immediately. Is it really plausible that the constitution, which in almost every aspect is aimed at limiting the scope of government, would have this one loophole which allows the federal government to force people to do absolutely anything?

    And I do not think that overturning Raich would be necessary (though it would be a damn good thing). The distinction between action and inaction is significant. Commerce always involves action. At least med. MJ patients are doing something (even if it isn't really commerce in any normal sense of the word) besides being alive.

  • MNG||

    I can see the reductio ad absurdem as I acknowledged above with this: "like Lopez such a distinction must be made to limit federal power under the clause or the overall purpose of limited, enumerated powers is gutted."

    The response to that is going to be "the reductio trained already has a stop, the economic/noneconomic distinction from Lopez"

  • SteveM||

    Some of the arguments on the earlier commerce clause thread are downright laughable.

    Not nearly as laughable as your own idiocy.

    I can see arguing Wickard and Raich were wrongly decided, but it's hard to see how you can strike this down without striking those down.

    It is absurdly easy to strike this down without striking down those. Those at least make some claim to be regulating economic activity, while Obamacare does not.

    You're a garden-variety lefty - your opinion of your own intelligence greatly exceeds the reality.

  • SteveM||

    Wickard dealt with a person choosing to remain outside an interstate market

    That's the worst legal analysis I've seen since ... since I read John Judis.

    Wickard did not deal with a person "choosing to remain outside an interstate market". Not by the text of the majorities decision. They went to great pains to explain how Filburn's activity (growing wheat) affected interstate commerce. I don't think they made a persuasive case, but they found it necessary to at least pretend that the case existed.

    The operative word there being "activity". Farming wheat for your own consumption is indisputably "activity", and it arguably affects "interstate commerce".

    Me not buying health insurance is not "activity", and my inactivity has no impact on interstate commerce. Inactivity can never affect interstate commerce.

  • ||

    The disinterest he's attributing to the press was and is bull, of course, but it does raise an important point. If more of us attempted to be objective and intellectually honest, and demanded the same of those in power, this might be a very different country. The goes for the press as well as us common folk.

  • MNG||

    I think a lot of it has to do with, for whatever reason, the 'creative' or 'knowledge class' (what Irving Kristol called the 'New Class') tends to be pretty liberal for whatever reason. They tend to be so much so they lose touch with opposing views and so fail to make them or give them credit. But the institutions themselves seem to set up disinterestedness as a goal. I think maybe they need some type of affirmative action for conservatives in those institutions so they can just be around and spice things up. Sadly because of their long-time exclusion and rabid resentment most talented conservatives that could fit the bill care little for disinterestedness...

  • ||

    It's really about intellectual honesty, which is not very valued these days. By anybody.

  • Tony||

    One side of the political spectrum doesn't care about it--distrusts objectivity in fact. That gives them license to characterize the other side any way they want, including injecting the toxic false equivalence argument that leads to total relativism, which benefits the hucksters more than the objective people.

  • ||

    That is true Tony. And they will be able to knock you over with a feather when you realize some day just which side you are talking about.

  • Tony||

    I am talking about the side that believes that higher tax rates decrease revenues and Jesus had a pet dinosaur.

  • BG=-=-=++-=D~ ,,---||

    Suck me hard, Tony!

  • Zeb||

    That's just fucking retarded, Tony. You know full well that there are more than just two sides. The fact that free market economics and religious fanatics got stuck together is a historical accident.

  • Tony||

    There are not more than two sides to every fact, however.

  • Tony||

    Or one.

  • Somalian Road Corporation||

    My stepfather is a staunch Democrat and I've heard it regurgitate a lot of nonsense, but he is also an accountant and even he realizes that the "higher tax rates do not decrease revenues" is utterly insane.

    100% rates (AKA nationalization) would have no effect?

  • Somalian Road Corporation||

    "heard him" not "heard it" blah, rewrote without rereading

  • ||

    I am talking about the side that believes that higher tax rates decrease revenues and Jesus had a pet dinosaur.

    Higher tax rates MUST decrease revenues at some point. If you tax everyone at 100% there will be no economic activity left to tax.

    The questions is where that point is, not whether it exists.

  • Tony||

    The point is quite beyond the realm of political plausibility.

    The claim is used totally as a lie. It is used to justify the notion that "we have a spending problem, not a revenue problem" and other such dishonest nonsense with a partisan political agenda. That many independent-minded libertarians here regurgitate as if it were something other than a talking point.

  • Hyphenated American||

    You do know that when Reagan lowered tax rates on the "richest 1%", the revenue from them went up, right? I mean, it's more than than a fact, that's what actually happened.

  • ||

    The objective ones, are they the ones trying to kill grandma or the ones that are accusing the other side of trying to kill grandma?

  • ||

    One side of the political spectrum doesn't care about it--distrusts objectivity in fact.


    Nice of you to finally admit that about yourself, Tony. But, we could already tell that by your ideological compatriots palming off their biases as the objective, unvarnished truth.

  • Bucky||

    but, but the science is settled!

  • SteveM||

    for whatever reason, the 'creative' or 'knowledge class' (what Irving Kristol called the 'New Class') tends to be pretty liberal for whatever reason

    Yeah, for "whatever reason". But the reason is clearly far beyond your ability to imagine.

  • SteveM||

    what Irving Kristol called the 'New Class

    The term "New Class" preceded Kristol by at least a century. Bakunin was using it in the 1880's.

  • Fist of Etiquette||

    It would appear that John Judis Jingleheimer Schmidt is very much not disinterested in proving Obamacare's constitutionality.

    But I do long for the day when disinterested robots will set public policy for us meatbags.

  • ola||

    No shit, I think I'm also disinterested in anything that John Judis Jingleheimer Schmidt has to say.

  • ||

    ""I certainly hope so, because, if it does not, we could be looking at a political system that begins to resemble that of the late nineteenth century, with its sharp and seemingly unresolvable clashes between different groups in American society""

    Did Rumpelstiltskin just wake up? Or is he too disinterested to know we are already there?

  • Somalian Road Corporation||

    "A mixed economy is rule by pressure groups. It is an amoral, institutionalized civil war of special interests and lobbies, all fighting to seize a momentary control of the legislative machinery, to extort some special privilege at one another’s expense by an act of government—i.e., by force."

    Old and dead tree media can't die fast enough.

  • Somalian Road Corporation||

    "A mixed economy is rule by pressure groups. It is an amoral, institutionalized civil war of special interests and lobbies, all fighting to seize a momentary control of the legislative machinery, to extort some special privilege at one another’s expense by an act of government—i.e., by force."

    Old and dead tree media can't die fast enough.

  • Montani Semper Liberi||

    conservatives have resorted to legal obscurantism, introducing a distinction between "activity" and "inactivity" (which does not appear in the Constitution)

    The Founders couldn't foresee how intellectually bankrupt statists would become in order to justify even more power for themselves.

  • MNG||

    I think you may be correct, but they left avenues open for that. In this case I don't think its unconstitutional but there are political remedies. They are actually working. People hate Obamacare and its mandate, it will not be around three or four more years.

  • The Tree of Liberty||

    "I think you may be correct, but they left avenues open for that."

    Yes they did and fuck am I ever thirsty.

  • MNG||

    How amusing is your impotent, bloodthirsty lil' rage!

  • Timmy McVeigh||

    Yeah, my "impotent, bloodthirsty rage" still gets alot of horselaughs, too.

  • .||

    Yeah, Timmy McVeigh's impotent, bloodthirsty rage still gets alot of horselaughs, too.

  • .||

    Fucking server squirrels.

  • Gilbert Martin||

    " introducing a distinction between "activity" and "inactivity" (which does not appear in the Constitution)"

    An absurd comment on it's face.

    Commerce IS activity. It isn't anything other than that.

  • Restoras||

    So, I'm guessing that when John Judis shows up for costume parties everyone thinks he's Fletch?

  • Middle Age Crazy||

    John Cock... tos... ton

  • 0x90||

    Or the Fonz.

  • ||

    a distinction between "activity" and "inactivity" (which does not appear in the Constitution)

    Good Lord, has this man never seen a text analyzed and applied?

    Of course, we only got to the point where the distinction between activity and inactivity became relevant to the discussion because the Commerce Clause has been beaten out of all recognition.

    Q: Is the purchase of health insurance interstate commerce?

    A: No. Health insurance is a purely intrastate market; state law prohibits the sale of policies across state lines.

    Ergo, the federal government has no commerce clause authority to regulate the commerce in health insurance policies.

    Or, if you want to ignore the lack of actual interstate commerce, there is this:

    Q: Is someone who does not buy health insurance engaged in commerce in health insurance.

    A: No. Where commerce does not exist, there is nothing for Congress to "regulate".

    It is only when you buy the whole "indirect effect, taken as a whole" argument that you get to the distinction between activity and inactivity.

  • ||

    No. Where commerce does not exist, there is nothing for Congress to "regulate".

    Ah, but by "choosing to remain outside the market" (see MNG's wording above), you are actually impacting that market and therefore engaging in a kind of interstate commerce.

    So you see, the interstate commerce clause gives the federal government power both to regulate interstate commerce, and to regulate any other activities whatsoever, because those activities could be taking place in lieu of interstate commerce.

    Quit being obscurantist, Washington has Important Laws To Pass.

  • MNG||

    Well, sure, you can be against the whole "indirect effects taken in the aggregate" doctrine, but the point is that right now that is the accepted law. Overturning the mandate within that body of law is what they are talking about.

  • ||

    but the point is that right now that is the accepted law.

    Apparently the constitution is over 35 years old and because language used in that era of troglodytes is impossible to interpret makes establishment of the constitution as accepted law null and void.

  • Somalian Road Corporation||

    Yeah, yeah, I'm sure if it was a law against miscegenation or sodomy you'd be making a status quo defense.

  • ||

    The central point of the Vinson ruling is that the "indirect effects taken in the aggregate" doctrine must have some sort of limit, or else it grants the government unlimited police powers.

    In particular, the argument that thev "necessary and proper" clause makes the madate necessary fails because it is part of the law itself that creates the perverse effects that require the mandate as a remedy.

    Under such a doctrine, the government could simply pass a law that creates perverse consequences in order to necessitate whatever action it desires. Using the necessary and proper clause in this way gives the government unlimited police powers and thus fails constitutional muster.

  • SteveM||

    you can be against the whole "indirect effects taken in the aggregate" doctrine, but the point is that right now that is the accepted law

    The accepted law is that Congress can regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power, even if the effect is indirect.

    Can you see the magic word in that? It starts with the letter "a" and does not contain a "g".

    Congress can regulate "activities" that have an aggregate effect on interstate commerce. It cannot regulate inactivity. If you believe otherwise then you believe that Congress can require you to get off your ass and start working instead of spamming message boards.

  • MNG||

    "Health insurance is a purely intrastate market; state law prohibits the sale of policies across state lines."

    We've discussed this before. Health insurance is dominated by large, inter-state enterprises. AETNA, State Farm and the like. You can buy their stock in pretty much any state. They or their subsidiaries operate in nearly every state.

    What you are thinking of is their policies are sold intrastate. Each state has its own unique regulations on policies and so they have a unique product for each state. But if tomorrow each state had a unique standard for chicken which Tyson met by selling 50 different types of chicken that would not make Tyson a intrastate enterprise.

  • Gilbert Martin||

    "You can buy their stock in pretty much any state. They or their subsidiaries operate in nearly every state."

    Which does not in any way convert the sale of insurance polices from intrastate transactions to interstate transactions.

  • Bucky||

    "the buying or selling of goods, especially on a large scale, between cities or nations"
    where does the individual mandate fit in here?
    if it does not fit, you must a - quit...

  • Rock Action ||

    I love that bit about the press. The front page of Saturday's Hartford Courant ran an article about the local Tea Party April 15th protests. Within two brief paragraphs, we were told that the TP'ers had "descended upon the state Capitol," "complained," and "complained loudly."

    Can you image a public sector union or an LGBT group protest being described this way in "America's Oldest Continuous Published Newspaper"? Please.

    As for Judis and authority, that's funny. The Truth would love this guy. Doesn't he know one of the distinguishing characteristics of American history from that of Europe's is the reluctance of its masses to accept the findings of experts and its refusal to defer to authority?

    Both his constitutional and institutional argument seems to smack of this: Let's turn back the clock to 1942 and stop right there!

  • ||

    I wouldn't say Judis is "disinterested" so much as "uninteresting".

  • ||

    And he betrayed Jesus!

  • ||

    For money

  • Lady Gaga||

  • ||

    Yeah, for money! He invented capitalism!

  • Federal Dog||

    "If the court rejects the plan on the kind of spurious grounds that its opponents have endorsed, then it will have abandoned its historic commitment to disinterestedness. And American democracy will be in very big trouble."

    Man, this is what having no education or critical thinking skills at all gets you. Did this guy go to college?

  • Restoras||

    Of course he did - in fact he went to Berkely, one of the 'right' colleges. The guy is a dyed-in-the-wool, personal liberty-hating statist. Also know as Tony.

  • Anonymous Coward||

    American democracy has long depended on institutions that behave [disinterestedly]. And not just the courts: It's also the much maligned "mainstream media" of The New York Times, The Washington Post, CBS, ABC, and NBC, as well as the older think tanks and policy groups, like the Brookings Institution and the Council on Foreign Relations.

    On a related note, Mr. Judis has some oceanfront property in Montana he needs to sell right away.

  • ||

    I suggest he find real estate appraiser and official document collector Lucy Ramirez (from the Texas State Fair Ramirez's) to appraise that property and assist with a loan for 100% of appraised value.

  • Middle Age Crazy||

    O for the days when the elite kept the public discourse on a higher plane.

    Boo-frickin-hoo.

    As if the web hadn't shown us the degree to which they impose their personal worldview under the cloak of "disinterestedness".

    Burn baby, burn.

  • Federal Dog||

    "O for the days when the elite kept the public discourse on a higher plane."

    Tee hee quod she.

  • Mortimer Snerd||

    "O for the days when the elite kept the public discourse on a higher plane."

    Hey, isn't that from Monty Python & The Holy Grail?

  • Middle Age Crazy||

    "First shalt thou take out the Holy Pin. Then shalt thou count to three, no more, no less. Three shall be the number thou shalt count, and the number of the counting shall be three."

  • Auric Demonocles||

    And no one commented on my 'Bring out yer dead!" in the Sandy Springs thread.

  • TSA-groped 6yo||

    If the government can penalize you for not buying insurance, can it also penalize you for not buying a television?

    Yes?

  • Tony||

    In reality, of course, even Mother Jones isn't the leftwing equivalent of FOX News.

    One side of the political spectrum simply doesn't value facts all that much. It denies entire scientific disciplines if they contradict their religious bullshit or their corporate cockgobbling bullshit. I'm sure nobody here is guilty of that.

    This licenses it to believe, well, whatever it wants to in service of its political agenda. The right in America has truly gone over a cliff of cynical factlessness. I would even argue that the left is more free to be factual than mainstream news--since the latter is constantly pressured to treat both sides equally.

  • Somalian Road Corporation||

    At this point whether or not Tony is an intentional troll or not is almost immaterial. All I can think of is the time and kilocalories spent banging out posts like these. I mean, come on, after so much time here this can only be bait.

  • Bucky||

    used to be he was satisfied with just MSM, but now he's (sob) into S&M and beating on Libertarians (breaking down with heavy sobbing)...

  • ||

    One side of the political spectrum simply doesn't value facts all that much.

    I wonder which one denies the existence of the Law of Comparative Advantage?

    ....

    Sadly the answer is mostly both...only one side pays lip service to it once in a blue moon.

    Anyway compared to libertarians both team red and team blue are flat-earthers, and both are so fucking insane trying to figure out which is more scientifically illiterate then the other is pointless.

  • Hyphenated American||

    Tony - just to demonstrate how stupid you sound...

    Liberal media claims that when Reagan lowered tax rates for the rich, the revenue went down. Go to IRS, and check for yourself if the revenue from richest 1% went up or down after Reagan drastically cut marginal tax rates.

    After you do that, come back and tell me who cares about empirical evidence, and who is a religious fanatic.

  • Tony||

    Are you correcting for population growth and inflation? No, I didn't think so, because I'm aware of this talking point.

    What happened when Ronald Reagan raised taxes 11 times? What happened when Bush dramatically cut them? (All of which needs to be adjusted for population growth and inflation.)

  • Hyphenated American||

    The numbers were as percentage of FDP.
    Good enough?

  • ||

    One side of the political spectrum simply doesn't value facts all that much.

    Facts are highly inconvenient when you're trying to convince people that all you need to do is tax more, spend more, and inflate more.

    -jcr

  • ||

    We've discussed this before. Health insurance is dominated by large, inter-state enterprises. AETNA, State Farm and the like. You can buy their stock in pretty much any state. They or their subsidiaries operate in nearly every state.

    Regardless of whether the entities operate in multiple states, the commerce does not happen across state lines. And, in fact, the entity that you buy your insurance from often operates only in one state. I know Blue Cross is set up that way.

    So you have a product that you can buy only in one state, from an entity that operates only in that state. Where's the interstate commerce, again?

    Well, sure, you can be against the whole "indirect effects taken in the aggregate" doctrine, but the point is that right now that is the accepted law. Overturning the mandate within that body of law is what they are talking about.

    And thus, the distinction between activity and inactivity is the last refuge of anyone who believes in a government of limited, enumerated powers. Does it seem casuistic? Perhaps, but only because the plain meaning has been gutted.

    The intuitive question remains, and has not been answered: "If the government can require you to buy health insurance, is there anything it cannot require you to buy?" I suggest that the inability to answer that question convincingly shows that the line of reasoning that ends with "The government can require you to buy health insurance" is fundamentally flawed.

  • ||

    ""Regardless of whether the entities operate in multiple states, the commerce does not happen across state lines""

    Well Raich might have made that a moot point.

  • ||

    Exactly. We can't allow anything that could have an economic impact on drug traffickers.

    What next, outlawing people from engaging in casual, consensual sex, because this has a "significant economic impact" on prostitution?

  • ||

    Great points. The supporters of the mandate argue that everyone, at some point in their life, will require health care. Because everyone will require healthcare, then everyone becomes an active participant in the healthcare market.

    If the inevitably of using a product, becomes justification for mandating the purchase of a product, then almost everything becomes open game. Everyone requires transportation, food and shelter. All of these things become future areas of even stricter regulation if the individual mandate is allowed to stand.

  • MNG||

    "So you have a product that you can buy only in one state, from an entity that operates only in that state."

    The entities certainly operate in multiple states, you can find Aetna affiliated agents, call centers, etc., all over the country. You can find their shareholders all over the country. Even profits and resources of their subsidiaries are shared between each other and the parent company.

    "And thus, the distinction between activity and inactivity is the last refuge of anyone who believes in a government of limited, enumerated powers."

    OK, I see that, but what about the response that the economic/noneconomic distinction from Lopez already provides a brake and therefore that refuge?

  • ||

    The administration argues the following provide a break on the government having a general police power if this is allowed to stand:

    (a) They argue that healthcare is unique because of cost-shifting; this is of course non-sense on stilts - cost shifting is common throughout a market economy (and there isn't much cost-shifting in healthcare in comparison to many other areas of the marketplace).

    (b) The everyone participates argument - which is true of enough other activities as to undermine the uniqueness argument.

    There really isn't anyway to let this stand and at the same time create any sort of limiting principle. Or one which allows for the continued maintenance of a federal republic.

  • Bucky||

    this^
    guys, i can't help wondering if "they" are three steps ahead of you...
    everyone is all caught up in the morass of the commerce clause debate...
    if this "thing" is sooo great, why have over 1,000 exceptions to O'Care been granted to corporations and groups
    why has the administration issued bonuses to Medicare Advantage providers for AVERAGE performance...
    do you think that his highness wouldn't look at all the legal angles before he started this crap?

  • ||

    Why all the love for disinterest?

    Who is dumb enough to think that resources would be better managed by people who have no fucking ownership in them?

    In fact isn't this the exact problem with tragedy of the commons?

  • Somalian Road Corporation||

    Committees of technocratic angel-kings dispassionate and distanced from their decisions are the best way to run things. Just ask the Soviets.

  • ||

    People just need to get in the boxes that their betters have assigned them. This 'think for one's self' stuff is only going to mess with the ablity of important people to eat their waffles. LET THEM EAT THEIR WAFFLES!

  • Marie Antoinette's milkmaid||

    LET THEM EAT MEADOW MUFFINS!

  • ConfederalRepublicBy2030||

    I hope ObamaCare gets thrown out in its entirety through nullification. Watch Barry cock-sucker Obama try to impose federal tyranny upon the states THEN, and see what happens.

  • ||

    "Like many good constitutional arguments, the argument can be put a lot more simply: If the government can penalize you for not buying insurance, can it also penalize you for not buying a television or a GM car?"

    People will turn this around on us too--if the government can't force us to buy insurance, then are social security, unemployment insurance, medicare and whatever else they make us pay for unconstitutional too?

    Even if you think we'd be better off if those things disappeared (as I do), aren't we better off making that argument on the merits anyway?

    We'd be so much better off if the government didn't force us all to buy insurance--or whatever GM is making these days. And the legal logic behind that is of secondary importance.

    If we're shooting ourselves in the foot, then whether shooting ourselves in the foot is legal according to the constitution should be the very last question on our minds.

    Shooting ourselves in the foot is stupid regardless of whether it's constitutional, and ObamaCare is shooting ourselves in the foot.

  • alan||

    And that will satisfy their urge to be on the cutting edge of legalism how?

    They will just go on and invent entirely new methods to string America up by the nads. You think giving in will satiate their lust for power? What planet, man? On what planet? On this planet their next step will be to use quantum superposition to claim that activity and non-activity are equivalent occurrences so laws that have traditionally been interpreted as not applying to given circumstances as the law was written and intended actually do apply, because, shit, its science!

    They can call it meta-natural law, and meta natural law naturally trumps natural law! You see, it is always heads you lose, tails I win with these people, and it is never a good idea to try to bargain with them.

  • ||

    I agree.

    And as a very wise man once said, "If you don't like the rules they make, refuse to play their game."

    http://www.youtube.com/watch?v=YIdcDL64KCE

    And when we argue back and forth about whether their stupid laws jibe with the Big Document, we're playing their game.

    I have a right to own a firearm regardless of what the Second Amendment says. ObamaCare is a stupid law, and it violates my right to self-determination--regardless of what the Commerce Clause says.

    If our objective is to persuade third parties, I think we might get more mileage out of questioning the authority of those who make these stupid laws for us in the first place.

    And if their supposed legitimacy is ultimately tied to the Big Document, then maybe we should be encouraging people to question the Big Document! Instead, sometimes it seems like we're doing the heavy lifting for the dullards running things by enshrining the source of their supposed legitimacy. ...when we're treating the Big Document like it's more important than it is.

    I think we've become deluded (even libertarians) into thinking the Big Document is the ultimate source of our rights--and that just isn't so.

    It's nice to make them kiss us legally before they screw us, but we're the source of our own rights regardless of what the Big Document says about commerce.

    If five out of nine judges rule against my rights, that isn't about to make violating my rights any more legitimate than when the jackasses in Congress voted for the damn law in the first place or when our stupid president signed it either.

  • ||

    conservatives have resorted to legal obscurantism, introducing a distinction between "activity" and "inactivity" (which does not appear in the Constitution)

    Because everyone knows the courts have always agreed that failing to save a drowning man is JUST LIKE pushing him in yourself.

  • sasob||

    Don't know if they consider it just exactly the same, but don't the courts have something they call depraved indifference?

  • Amakudari||

    Yes, which would make it manslaughter if anything. If you push the man in it would be murder. So the courts have definitely made a distinction in how activity or lack thereof relates to the man's drowning.

  • ||

    Eat poo, Sir.

  • ||

    Guess someone's tired of waiting for the Democratic majority to emerge...

  • ||

    The way I interpret "disinterest" in the courts would be a good approach to the law and Constitution. The problem has been the courts "interest" in what the law is supposed to do rather than the constitutionality of it.

    As just one example the court "wanted women to be able to have abortions". They were interested enough in that outcome to "find" the right to it in the Constitution. Today some on the court want "all people to have healthcare" so I am sure at least four of them will be interested in "finding" a right to healthcare.

    Whether my interpretation is right or wrong to me a "disinterested" court would be one that would say, we are completely disinterested in the laws attempt "to alleviate poverty" [just as an example] no matter how noble that goal is the law is unconstitutional, period.

  • ||

    All of these institutions have traditionally rested their laurels on disinterested judgment. They might not always succeed, but it's the standard they set for themselves.

    No, John. Not only have they "not always succeeded", but they have so consistently not succeeded that the only reasonable conclusion is that disinterested was never their actual standard, but a claim made to enable its practitioners to blow off counterarguments with labels like "spurious" or "obscurantism". In short the disintrestedness these institutions claim has been revealed for a sham and those claiming it have been reveled for little more than concern trolls.

  • ||

    Is there a way to use the commerce clause to get an In and Out Burger in Kentucky?

  • ||

    NPR and the NYT definitely give off a "disinterested" vibe. Disinterested in truth, that is...and I'm not being glib.

    They are much more interested in that smug moral superiority than trying to understand or grasp anything that remotely resembles objective truth. They desire a carefully crafted image. That's why hipsters and progressives are virtually synonymous.

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