The Conservative Version of Marriage

The issue of whether to extend marriage to homosexual relationships seems to be a defining characteristic of our time, and I suppose I should put forth my two cents, seeing as the Supreme Court will take up a few cases addressing the issue.  I think that an argument for the conservative position regarding marriage should be expressed as clearly as possible, if for no other reason than because of the ease with which the opposing side can set up a divisive straw-man/ad hominem attack . . . after all, do "we" need any more evidence of the bigotry and hatefulness of "those" crazy  right-wingers?  They're just a bunch of old, angry white men anyway.  Right?

In this post I will limit my inquiry into whether there is any inalienable right connected to marriage, and if there is, whether that right extends to homosexual relationships.  This is a distinct inquiry from one centering on equality.  This distinction I suppose will be disappointing to some, since the two inquiries are often jumbled together in everyday discussions regarding this issue.  However, equality and inalienable rights are distinct matters and clear thinking on any particular issue should treat them accordingly.  I will further limit my inquiry to the philosophical underpinnings of the arguments of both sides rather than delving into legal arguments.  This is because, in my opinion, there are perfectly good legal arguments to be made on either side.  For example, the Supreme Court has indicated on several occasions that the decision of who to marry is a personal choice that should not be restricted by the state.  However, such a "right to marriage" is muddied by case law indicating that it can be regulated, as can be seen in this excerpt from a still valid Supreme Court case: "Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.  Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal."  Honestly, as far as purely legalistic arguments go, there are perfectly good arguments to be made on both sides and my two cents in that arena are, at present, worthless.  So, what I am concerned with here, are the more philosophical underpinnings for the arguments because it is there that my thoughts may have an impact on the minds of those who read this post.

The Two Versions of Marriage
The two sides approach this debate with very different understandings of what function marriage serves in society. The LGBT community, as far as I can tell, is advocating an approach in which marriage functions as a recognition of and support for loving, committed, sexual relationships. The conservatives are advocating for an approach in which marriage functions, similarly, as a source of support and recognition, but for those who are engaged in, or who anticipate being engaged in, a sexual relationship and are committed to each other in such a manner that they will together assume the primary responsibility of raising any children conceived as a result of their sexual activities.  The divide is not very difficult to appreciate. For the conservative, homosexual activity alone, no matter how loving and committed the participants are to each other, cannot result in bearing children, and so marriage is inapplicable.  For the LGBT community, love, commitment, and sexual activity are clearly not contingent on a particular sexual preference, namely a heterosexual relationship.

Inalienable Rights Associated with Relationships
Both of these versions of marriage address relationships, suggesting that some relationships are such that the participants are entitled to societal support and recognition.  I have to believe that even the LGBT community will accept that, if there is such an entitlement for some relationships, not all relationships are similarly entitled (at least on their own terms - remember an equality analysis is distinct from an inalienable rights analysis).  For example, I have a friend.  We enjoy each others' company.  We watch sports, we play sports, we discuss politics, we eat food.  There is no reason why our friendship warrants the same kind of recognition and support from society as my relationship with my wife.  Or as another example, my wife and I own a dog.  We love our dog.  I like to think she loves us.  But clearly our relationship with our dog is not entitled to the same recognition and support from society as my relationship with my wife.  Finally, many people have participated in one-night stands, engaging in sexual activity that, while I'm sure its exciting and fun, does not really seem to deserve recognition and support from society.  So, on their own terms, not all relationships are entitled to the same support and recognition.

Some might think that there is no inalienable right to societal support and recognition for any relationship, and I can understand that initial reaction.  It seems odd to think that the relationships that I form might create some sort of entitlement from society.  But it does seem to me that there are some inalienable rights (if not a right to support and recognition) associated with relationships.  In fact, my concept of inalienable rights hinges on relationships.  To me, an inalienable right is an individual's expectation regarding the behavior of others and of society which arises necessarily from the relationship between that individual and society.  Because an individual does not live in isolation, the role of the individual in this formulation can easily be expanded to include the particular relationships that individual is in.  Thus, there may be an inalienable right regarding one's relationship with another if that right arises necessarily from the connection between that relationship and the rest of society.  For example, the Supreme Court has expressed an inalienable right regarding sexual relationships involving consenting adults acting in the privacy of one's home.  The Court has recognized that individual's have a reasonable expectation to be free from government regulation, interference or intrusion regarding such a sexual relationship.  Clearly there is an interplay with the idea of privacy, and without getting too far off topic, I'm willing to go with the Court on this one.  So, for purposes of this post, we can stipulate that sexual relationships between consenting adults, in which their sexual activity is conducted in private, are such that the connection between those relationships and the rest of society necessarily creates an expectation to be free from governmental regulation, interference, or intrusion. 

Inalienable Rights of Children
There is a fact, which I should hope is well known, that some kinds of sexual activity present the "risk" of creating children.  This has a very serious significance for society.  In fact, society cannot continue to exist without the creation of new members to at least replace those who die.  The necessary expectation would seem to be that society may act to preserve itself, and hence to take some sort of action regarding the creation, or potential creation, of new members, i.e. children.  Society exists, in part, to provide a greater chance of successful procreation and insofar as the right to sexual activity is recognized, that basic relationship between society and individuals seems to be satisfied.  However, once a child is created, it cannot provide for its own needs and is not prepared to confront the challenges of life or to be a contributing member of society.  The child relies on society to provide, in particular, the protection required to allow it to mature physically, mentally, and emotionally.  Theoretically, there are many ways in which society could provide this protection and guide a child through the maturation process.  However, biology has presented the most straightforward manner - the biological mother and father are generally imbued with an enormous amount of love and concern for the new child that they are willing to take on many hardships to provide the protection and guidance themselves.  In fact, this parent-child relationship is another relationship regarding which the Supreme Court has recognized an inalienable right, which I am equally willing to follow.  The right is essentially that the biological parents of a child have the necessary expectation to be free from societal regulation, infringement, or intrusion regarding their relationship with that child, insofar as they are not damaging the maturation (physical, mental, or emotional) of the child.  It should be especially noted that this inalienable right of the parents is actually dependent on the inalienable right of the child to be protected and guided throughout its maturation process until it is able, or should reasonably be able, to confront the challenges of life and to be a contributing member of society.  Hence, there is an inalienable right which is in fact an entitlement upon society - the right of the child to be protected and guided until it has matured. 

The Inalienable Right of Marriage
It is upon this entitlement, and its connection to the biological parents of a child, that the conservative version of marriage is predicated.  Because society has essentially outsourced its responsibility to care for and guide its new members to the biological parent-child relationship, it is reasonable that those who have assumed the responsibility are "compensated."  Furthermore, it is reasonable that society "encourage" the parents in their commitment, both to cooperate with each other and to actually care for the child, which can understandably wax and wane over time.  Therefore, it can be argued that the biological parents of a child also have an inalienable right to some form of societal support and recognition.  Historically, this support and recognition has taken the form of marriage, which has enjoyed varying levels of actual support over the centuries, but has for millennia been a form of recognition of those who either have created a child through their sexual activities, or who reasonably anticipate creating a child through their sexual activities.  These relationships which warrant societal support involve partners who are sexually active and are committed to their relationship to each other.  This commitment has generally been recognized to be most successful when there is a level of love between the participants.  Hence, the elements of the LGBT version of marriage are present: sexually active, and lovingly committed couples.  However, the reason of the societal support is not because of these elements, but because these elements have the potential of creating new life, of bringing new members into the society, and that these elements are the best known to prepare these new members for success in society.  In other words, while the elements of the LGBT version of marriage are necessary for the success of this relationship deserving of societal support, they are not sufficient to establish that relationship.

Homosexual Potential for Creating Life
However, it can be argued that homosexual relationships have the potential of creating new human life as well.  For example, a male couple could use the semen from one of them to fertilize an egg which has been harvested from a woman, known or unknown, and have that egg implanted into another woman.  Nine months pass, and ... voila! A child is born.  Here, the "biological" parents are significantly less clear than in a conventional birth. The "mother" could be either the surrogate who carried the child to term or the woman who donated her egg, or both. The father's identity, however, is clear - the man who donated the semen. This however leaves out the father's male partner.  Assuming that they are in a lovingly committed relationship, it is highly likely that the father's partner played a significant role in the decision to create a new human life.  Would it not be in the best interest of the child to be raised by the gay couple which are responsible for the decision to bring the child into the world, and in the best interest of the gay couple who feel connected to the child in a deep emotional way?

However, this scenario must address the issue of whether there is an inalienable right to pursue such modern forms of conception.  An inalienable right cannot be predicated on an alienable right.  In other words, if there is no inalienable right to to modern forms of conception (or phrased differently, if the state can legitimately outlaw such modern forms of conception), then an inalienable right to marriage cannot be predicated upon those modern forms of conception. 

Perhaps one might try to argue that such an "anchor" right is a right to contract.  However, such an argument is pretty clearly sailing against some strong headwinds.  Do parents have a right to enter into a contract selling their child's labor?  Does an individual have the right to enter into a contract to kill some 3rd party, or even to kill the other party to the transaction?  Can't the state regulate employment contracts, especially regarding minimum wage or safe working conditions?  The general consensus would be that there is no inalienable right to contract in any manner or for any purpose, although philosophically I suppose that is debatable.  Just going with that consensus though, the power of the state to regulate contractual relationships would at least initially include the right to contract with other parties to pursue modern forms of conception.  So it seems that a general right to contract can't be the anchor for such a right.

It might be argued that there is an inalienable right to be a parent, and that the right to contract for modern forms of conception is therefore predicated on that right, and the right to marry therefore extends to homosexual relationships.  While being a parent is a satisfying, though obviously difficult, experience and while I would personally consider it a necessary part of a full and satisfying life, I find it difficult to find that one has an inalienable right to become a parent.  We previously found that those who do become parents have an inalienable right associated with their child, but that doesn't mean that any given individual has the right to become a parent.  For example, no normal human being can become a parent individually.  One may become a parent individually through adoption, but that I should think is pretty clearly a matter of societal discretion - the biological parents have abdicated their rights, therefore it is society's responsibility to care for the child, and society may find that a particular individual is better capable to care for that child.  May find.  It is society's responsibility to make sure that the best interests of the child are the deciding factor, regardless of any interest that individual may have.  So any  supposed right to be a parent must come down to a right to engage in any relationship which can create human life, including those contractual relationships necessary for modern forms of conception. One can point to one of the purposes of society already mentioned, i.e. to provide a greater chance of procreation.  The fact that science has developed these modern forms of conception is simply another way in which society fulfills this basic function.  Originally, only the right of consenting adults to privately engage in sexual activity fulfilled this function.  Now, modern forms of conception can supplement that right.

A Further Refinement of the Concept of Marriage
Prior to this point, I have addressed marriage in connection with biological parents and with those who reasonably anticipate that their sexual activity might result in the creation of children.  The significance of being a biological parent is that the biological parent-child relationship gives rise to a necessary expectation that one would be the primary provider of the protection and guidance required by the child.  Because there are generally two surviving biological parents with equal expectations to be the primary provider, it is in society's interest, the parents' interest, and the child's interest, to unite the expectations of the two biological parents into a single "entity."  Hence, marriage is meant to unite those individuals who have equally legitimate expectations to be the primary caretaker of a new child, encouraging cooperation etc.  Where those expectations are not equal, then the primary caretaker is clear, and a unity of expectations is not necessary and marriage does not apply (although that primary caretaker may be entitled to some form of support and recognition from society which is distinct from marriage).  The significance of reasonably anticipating that conception may result from the sexual activity of the marriage partners is that such a reasonable anticipation creates a presumption that a child actually conceived by a married woman would be the result of the sexual activity of the married couple, thereby establishing a presumption that both the husband and the wife are the biological parents.  Of course, this presumption can be rebutted, but it is a convenient preliminary method to quickly establish who has what expectations.

Back to Modern Forms of Conception
Accepting an inalienable right to modern forms of conception for the sake of argument, our inquiry then turns to whether this "right" translates into a similar right to marriage for homosexual couples.  I do not think it does.  In other words, I think such a situation is sufficiently distinct from the conditions which give rise to the right to marriage so as to make that right inapplicable.  As one will recall, the right to marriage arose from 1) the right of the child to be protected and guided through its maturation process, and 2) from the right of the biological parents to be the primary source of protection and guidance for the child insofar as they do not actually impede its maturation process.  Clearly, the right of a child conceived through modern forms of conception does not change.  It is still entitled to protection and guidance.  However, the right to be the primary source of that protection and guidance does not seem to be the same when modern forms of conception are employed by a homosexual couple.  As indicated above, the relationships of the parties involved are complex.  It may be that the birth mother has a legitimate interest in the well-being of the child as well.  She, after all, would be the one most potently affected by the biological facts of life.  In our scenario, only one of the male partners was responsible for creating the child, i.e. is the biological parent.  The other may have been a significant factor in the decision to create the child, but was not a physical causal force.  Because only the biological parents have a necessary expectation of being the primary provider of the child's protection and guidance, there is no need for a uniting of interests between the male partners.

It seems to me that the strongest argument in favor of an inalienable right to societal support and recognition for homosexual couples would be that the lovingly committed nature of their relationship warrants an extension of the generalization that biological parents are the best positioned to provide the necessary child care.  However, that assumes that the biological parents' rights are because they are actually better positioned to care for a child.  That is not the case.  The biological parents' rights arise because the biological facts of life are so powerful that to ignore them would violate the parents' reasonable, and necessary, expectation that they would be the primary providers.  The same kind of necessary expectation as that of a biological mother and father does not arise in the case of a homosexual couple.  I would be willing to grant that the loving, committed, and sexually active nature of the relationship should be considered if there is ever a problem regarding custody.  They are two adults in a presumably mature and reasonably healthy relationship.  It certainly is relevant in showing a capacity to provide for the needs of a child during its maturation process.  However, the issue of who is best positioned to provide for the needs of the child is only relevant in the exercise of society's discretion to "outsource" its responsibility of providing the protection and guidance for a child.  One does not have an inalienable right to be the provider of a particular child's needs merely by the fact that one is better positioned to provide those needs than society itself is.

For example, consider a heterosexual married couple.  They have some children together, but one of them also had a child with another individual prior to this marriage.  Now, the biological parent of that child dies.  Who has what necessary expectations regarding that child?  First, if there is a surviving biological parent who is capable of providing for the child's needs, that biological parent has the necessary expectation of being the primary provider.  What of the step-parent?  That step-parent may become the provider of the child's needs if it is shown that the biological parent is incapable of providing those needs.  However, if that is shown, the step-parent-step-child relationship does not in itself create a necessary expectation that the step-parent will become the primary provider for the step-child.  The fallback provider is society.  It is then society which exercises its discretion to determine whether providing that child care should be outsourced to the step-parent.  In many cases, I would expect society to decide that the step-parent should be the provider, but that does not diminish the fact that society is exercising a discretionary function in so deciding.  Similarly, a male partner of a biological father may become the provider for a child, but he does not have that expectation so long as 1) the biological father or the biological mother is still capable and willing to provide for the child's needs, and 2) society has not actually exercised its discretion to outsource its responsibility to the male partner.

Support and Recognition for All Child-Rearing
One might argue that all child rearing situations warrant societal support and recognition, including when the parents are homosexual - that no matter what the situation, those who are involved in raising a child warrant societal support and recognition.  Therefore, marriage should be extended to the LGBT community.  This, however, seems to be more of an argument revolving around equality than around inalienable rights.  To the extent that it is about inalienable rights, any right to societal support in child rearing alone does not indicate that all child rearing situations warrant the same societal support and recognition.  The concept of marriage simply does not apply to a single mother, no matter how deserving she might be of societal support. Similarly, the situation with homosexual parents is sufficiently unique (only one of the partners actually has a necessary expectation regarding his/her relationship to the child such that he/she is the primary provider of the child's needs) that regardless of how deserving they are in receiving societal support and recognition for raising a child, the right to marriage does not apply as of necessity.

Heterosexual Couples Without a Reasonable Anticipation that Sex will Create Life
Which brings me to another point often raised against the conservative version of marriage.  If marriage is about those who can have children as a result of their sexual activities, why should an infertile heterosexual couple, or an elderly couple, be allowed to be married if they can't have children?  The implication being that they are allowed to be married because they are in a loving, committed and sexually active relationship, just like homosexual couples.  Therefore, the argument goes, homosexual couples should be allowed to be married too.  However, it seems to me that a young infertile heterosexual couple generally marries with a good faith belief that they are both fertile.  By way of making this distinction as clearly as possible, the question is, "Why should an infertile heterosexual couple be allowed to be married, unless its because they are in a loving, committed, and sexually active relationship?"  The answer is, "Who reasonably anticipates being infertile?  Basically nobody.  Who reasonably anticipates that children will not result from a homosexual relationship?  Basically everybody."  Furthermore, while one partner in a heterosexual couple may know that they have fertility issues, it is practically impossible to know that fertility treatments will not empower the heterosexual couple to create a child.

The situation of the elderly couple is more difficult.  Simply put, there is no reason inherent to their relationship alone that they would give rise to an inalienable right to get married under the conservative version of marriage.  For example, what 80 year old woman reasonably anticipates that she can't get pregnant?  Basically, every 80 year old woman.  Therefore, it may be that the extension to elderly couples of the right to get married is merely a policy decision.  That is, unless it can be shown that the right to get married extends to the elderly as the result of some other inalienable right.  In other words, if  there is some other reason why individuals have a necessary expectation that society will not inquire into their biological fertility, then it is actually improper to exclude infertile or even elderly people from the right to marry.

The Right to Security in One's Person
One expectation which follows necessarily from the nature of the relationship between individuals and society is the expectation to be secure in one's person (which pretty clearly includes one's body if not more).  In American parlance, this is often referred to as the right to life, though it actually involves much more than that, overlapping in many ways with what is commonly called the right to privacy.  Society exists for the purpose of improving the lives of individuals through cooperation and peaceful coexistence.  This purpose does not arise out of some pre-societal natural state of humanity - no such condition ever existed.  However, even in evolutionary terms, society developed among various species as a way of providing greater protection for individual members so as to increase the overall chances of successful procreation.  As humanity emerged, more interests beyond mere procreation (such as a desire for meaningfulness, purpose, self-actualization, what have you) were introduced, and the role of human society has adapted to acknowledge these needs.  The basic premise underlying society, however, remains the same - securing individual members in their persons.  Should an individual, a group of individuals, or even the rest of society breach this inalienable right, the premise of society has been undermined.  Their actions are thus anti-social, constituting a rejection of the symbiotic relationship between individuals and society.  In other words, by virtue of the mere existence of society, an individual member of that society has the necessary expectation not to have their bodily integrity violated.  So, an individual has an expectation, which arises necessarily from their relationship with society, that other individuals, whether acting in their capacity as individuals or as agents of society, will not conduct medical investigations into that individual's body without that individual's consent.  Hence, society is prohibited from determining, without the consent of an individual, whether that individual is infertile.  Therefore, regarding the scope of individuals to which marriage must extend by right, there can only be a presumption that individuals are fertile.  The case of the elderly woman desiring to get married is difficult because it doesn't seem like there should be a presumption that she can have children.  However, if one considers the difficulty of determining at what age such a presumption no longer applies, it becomes clear that age is not determinative.  For example, young men and young women are physically maturing earlier and earlier, while there are more and more instances of women conceiving when it was thought that they could no longer conceive.  There simply doesn't seem to be an age at which one can affirmatively declare that no individual will ever be fertile. 

One might object that we have inquired as to the procreative success of homosexual couples, so why not others?  It seems clear to me that the nature of the inquiry is critical.  Homosexual individuals are just as free from imposed medical examinations to determine whether they are fertile or not.  The security of their persons, of their bodily integrity, is just as important.  However, there is no need for any further medical examination to conclude that a homosexual relationship between partners who are presumed fertile still cannot result in both partners being the biological parents of a child.  On the other hand, there is no need for any further medical examination to conclude that a heterosexual relationship between partners who are presumed fertile can result in both partners being the biological parents of a child. 

The LGBT Version of Marriage Briefly Considered
Having considered the conservative version of marriage and found it entirely plausible, what then of the LGBT version of marriage?  As indicated much earlier in this post, I think it is pretty evident that there is no inalienable right to societal recognition of and support for all relationships.  So, is there such a right in the particular circumstances presented by homosexual couples, and if so, is that right to societal recognition and support essentially the same as that historically provided by marriage?

The LGBT version of marriage, as I understand it, is that loving, committed, and sexually active relationships are entitled to societal support and recognition.  Each of these elements alone does not seem to create any sort of necessary expectation in connection with its relationship with society.  A loving relationship, alone, does not indicate either commitment, or even active involvement such that there is any sort of expectation from society, beyond perhaps general privacy expectations which might apply.  A committed relationship, alone, does not indicate the motivation for that commitment - the relationship could be coercive.  Similarly, a sexually active relationship, alone, does not seem to warrant any expectation from society, beyond privacy expectations (associated with the aforementioned right to have sex).  Sexual activity in conjunction with either love or commitment, also does not seem to create a reasonable expectation to societal support and recognition.  Sexually active and loving relationships have no inherent indication of duration or commitment that might warrant any such expectation.  I can only think of expectations associated with a general right to privacy or right to have sex.  On the other hand, sexually active and committed relationships also do not necessarily create any rational expectation of support and recognition.  Once again, mightn't such a committed relationship be coercive?  Many battered women are plenty committed to their abusers.  That hardly seems worthy of societal support and recognition.  So, we come to the conjunction of all three elements.  A general policy of encouraging sexual relationships to be committed and loving might be wise, but I just don't see that being a necessary expectation from society.  I don't see anything in the nature of the relationship between society and such lovingly committed, sexually active relationships which necessarily creates an expectation beyond a general expectation of privacy, clearly associated with an expectation of consenting adults to be free to enter into sexually active relationships, and to engage in such sexual activity in the privacy of their own homes. 

Furthermore, if there is some expectation to societal recognition and support for such relationships, is there any reason why that recognition and support must be the same as that provided in "traditional" marriage?  First, I recognize that my analysis here must be limited because I have not identified any potential justification for such societal recognition and support, so I cannot compare the justification with my discussion of the conservative version of marriage.  Furthermore, I recognize that there seems to be a strong equality argument here.  However, like I said at the beginning, arguments about equality and arguments about inalienable rights are distinct and should be treated accordingly.  So, as far as inalienable rights go, I don't see any reason why the two kinds of relationships addressed by the conservative version of marriage and the LGBT version of marriage would necessarily warrant the same support and recognition.  Marriage itself is only a right to societal recognition and support, the level of which is to be determined by policy considerations relevant to the time and place.  Why should any inalienable right to support and recognition connected to lovingly committed and sexually active relationships be tied by necessity to such policy decisions?  Furthermore, some states have begun to offer domestic partnerships.  If there is an inalienable right to societal recognition and support, why can't these suffice?  Therefore, the LGBT case must offer some reason why the validation of marriage in particular should be extended to their relationships.  From what I can tell, the further argument is that any difference in the rights and responsibilities granted in varying forms of societal validation is unequal and therefore illegitimate.  However, that does not create an inalienable right on its own terms, but is an argument about equality which must be considered separately under an equality analysis.

Conclusion
The LGBT version of marriage does not present a clear reason why all individuals involved in lovingly committed and sexually active relationships have a necessary expectation of societal support and recognition by virtue of the connection of those relationships to society.  Therefore, there does not seem to be an inalienable right to recognition and support for such relationships.  Supposing that there is a reason, there doesn't seem to be any reason under an inalienable rights analysis that would warrant the same policy decisions regarding the level of support and recognition as those made regarding the conservative version of marriage. 

The conservative version of marriage presents a reason why there is an inalienable right to marriage for heterosexual individuals involved in a loving and committed relationship.  Children are entitled to protection and guidance throughout their maturation process.  Those who provide that protection and guidance are entitled to societal recognition and support.  The biological parents of children are entitled to be the primary providers of that protection and guidance.  Where there are two surviving biological parents, they are equally entitled to be the primary providers of their children's protection and guidance, and if the parents so desire, they are entitled to particular support and recognition so as to encourage unity in the rearing of the child.  This particular support and recognition has historically been called marriage.  Two individuals in a homosexual relationship cannot both be the biological parents of a child.  Therefore, if any child is created as a result of the actions by either of the two individuals in a homosexual relationship, only one of them will have the right to be the primary provider of protection and guidance for that child.  Therefore, there is no entitlement to unite the child rearing interest of the primary provider with any interest held by the homosexual partner.  Therefore, the societal support and recognition involved with the relationship identified by the conservative version of marriage do not also apply to homosexual couples.

So, I hope you, my dear reader, have made it this far.  While I certainly don't expect to convince everybody (heck, I'd be pleasantly surprised if I convinced anybody given the emotionally charged nature of this issue), I do hope that those who agree with my view have a better understanding of their own position while those who do not agree with my view can better appreciate it and not merely conclude that their opposition is just a bunch of haters.

Why Obama is Unacceptable in 2012

I fully recognize and appreciate the symbolic significance of Obama's victory in '08 (although I maintain that being awarded a Nobel Prize for winning an election is a bit much).  Furthermore, while I didn't vote for Obama, neither did I vote for McCain.  Therefore, I did not approach Obama's presidency with the acrimony of a partisan opponent.  In fact, I genuinely hoped he would do well, and that his policies or decisions would be productive and helpful for our country.  I genuinely hoped that Obama would govern openly, that he would be post-partisan (or at least less partisan than the last few years of the Bush presidency), and that he would guide us through an economic recovery.  However, I believe that Obama has revealed that he is either unable or unwilling to do those things which are necessary for America's recovery.  Let me explain a few of the indicators from his last term which tell me that Obama is simply unacceptable for another four years.

The Stimulus
Obama pushed through an economic stimulus to try and jumpstart our economy and save us from our free-fall.  I actually have no problems with that, at least conceptually.  I think a stimulus was the correct thing to do (despite how toxic the term has become, particularly amongst Republicans).  However, it is the particular elements of the stimulus and the way in which it was administered which indicate how poorly Obama understands both the economy and the government.  As far as I can tell, there were three basic prongs in the stimulus.  Number 1: a general granting of the Democratic wishlist.  This is to be expected, from whichever party was in power, but its actual stimulant effect is debatable at best.  However, because it's to be expected, I can't really place blame here.  Number 2: investment in shovel-ready infrastructure projects.  I said it at the time to all who I encountered, that shovel-ready was absurd in the current regulatory climate.  I don't oppose regulations in and of themselves, but the regulations which were in place made it basically impossible for any infrastructure project to go forward in a timely fashion.  In order for the projects to be truly shovel-ready, Obama would need to follow up the stimulus passed by Congress with a clearing of the regulatory path so as to get the projects going.  This he failed to do, either because he was unwilling or unable.  Therefore, much of the money from the stimulus directed towards the infrastructure wound up being spent merely trying to satisfy bureaucrats.  Such expenditures simply will not do much to stimulate the economy.  Number 3: investment in "green" jobs.  This was the biggest crock - a veritable hoax perpetrated on the American people.  Even basic, cursory research into these investments revealed that nearly all of these proposed industries were still in the research and development phase.  I have nothing against research and development, but paying billions of dollars to a few scientists to try and develop a new technology does not have a very large stimulant effect.  Beyond these three major prongs, there were some other expenditures, but they were relatively modest and never meant to be the crux of the stimulus.  Therefore, even a preliminary analysis would make clear that the stimulus would have little effect, because simply throwing money around doesn't create the value which is needed for a sustainable economic recovery.  As events have unfolded, all of this has become clear, and now we are in such dire financial straits that the effects of another stimulus would be seriously dampened by concerns about the ratio of debt to GDP (and thus America's ability to pay off its debts).  The upshot being this: Obama either has no clue how the government and the economy work or is so over his head that he is unable to properly carry out that which he intends.

Obamacare
The Affordable Care Act pursues, I must admit, a noble goal.  Who would object to increasing access to quality and affordable medical care?  However, fiddling around with people's healthcare is an understandably touchy subject and there are two major problems with the Act (besides the individual mandate).

First, is that it distracted Obama from the economy.  He merely threw billions of dollars at the economy in the form of his stimulus bill and assumed that that would take care of the problem.  This indicates far worse economic stewardship than President Bush who at least actively engaged the problems.  By failing to resolve the number one concern of the people prior to moving on to creating a huge new bill, Obama made a MAJOR error in political calculations.  Obama was elected with one overarching issue on the mind of voters - the economy.  Had Obama spent the first two years focused like a laser on that issue, he would likely have done much more to assure an economic recovery, and in doing so, would have earned the respect and trust of a broad swath of the electorate.  He would undoubtedly have been met with opposition in some form or another, but he would probably have maintained a respectable advantage in Congress rather than turning it over to his opposition.  This major, and unforced, error has caused him no end of headaches and has indicated, to me at any rate, a serious lack of understanding of how politics works.  Barring a clear mandate, people elect a president with hope that that person will be not only morally good, but effective.  That hope needs to be transformed into trust through success on a major issue of the day but which also is not a source of major opposition, thereby allowing bi-partisan cooperation.  An example of such an issue would be our economic recovery.  While there is disagreement as to what exactly to do, nobody is against an economic recovery.  Therefore, Obama could have worked in a fairly bi-partisan manner in an effort to improve our economy.  If his policies had been successful, he would then have been largely free to pursue more controversial policies because he would have earned the trust of the people.  This Obama failed to do.  That is why talk of death panels and fear of losing health insurance were so pronounced in '09 and '10, and why other fears and lack of trust in government is still so high.

Second, the Act doesn't actually resolve the issue it seeks to address.  The goal, so far as I can tell, is to make affordable, quality healthcare more accessible.  Rather than focusing on healthcare, the Act focuses on health insurance.  This is a fatal flaw in my estimation.  All that is achieved by making health insurance more accessible is to increase the demand for healthcare.  The problem, however, is that medical professionals are already overworked.  By increasing the demand for their services, they will 1) charge more, thereby increasing the costs of insurance in the long-run (unless the government interjects itself to prevent doctors from charging more, but this would have the effect of making the basic business model less and less workable, thereby forcing more and more doctors to "retire," thereby decreasing access to healthcare), 2) spend less time with each patient, thereby resulting in lower quality healthcare, and/or 3) attempt to provide the same level of service, but work themselves to such a level of incapacity that the quality of healthcare provided will still decrease.  In order to make quality healthcare more affordable, the government should focus first on increasing the supply of healthcare professionals.  This can be achieved by providing greater financial assistance both in the education of doctors as well as to doctors who practice in areas which have fewer medical professionals than are necessary to adequately care for the people.  For example, San Bernardino, CA has far too few medical professionals to adequately care for the population there, largely because it is a much less desirable place to live than on the coast.  However, by subsidizing to some extent a doctor who opens a new facility in San Bernardino, more doctors would come there and the people would have greater access to healthcare.  This would have the additional benefit of increasing the competition, thereby lowering costs as much as is practicable.  Thus, by focusing on supply, the government can actually make quality healthcare more affordable.  There are, of course, more intricate issues to address and much more nuance than this simple illustration captures.  However, it does point out the most serious flaw of the Affordable Care Act.  By increasing demand, it will lower the quality of healthcare, and even increase the costs in the long-run.  If it were to instead increase supply, it would lower the costs and still maintain the high level of quality that patients have come to expect in America.

Therefore, Obama's signature legislation will be a momentous failure, despite providing some goodies for free, such as contraceptives.  Even if he had properly approached the issue politically by first earning the trust of most of the electorate, the solution he has enacted is simply bad policy.  This whole Obamacare ordeal has demonstrated once again, a lack of ability or willingness to do correctly that which is an otherwise appropriate or laudable objective.

Dodd-Frank
The Dodd-Frank bill is another piece of legislation where Obama has failed in a major way to properly do that which is otherwise correct.  After the financial crisis and the absurdity of institutions being "too big to fail," it makes perfect sense to change in some way the financial system so as to prevent such a disaster from happening again.  To me, the clear response was to inject a level of responsibility where the bailouts had removed it.  Thus, those banks which had received aid, while not being allowed to fail, should have been broken apart into smaller entities, each of which would be forbidden from hiring any of the executives which had led the larger institution to disaster.  Furthermore, any number of steps could be taken to prevent banks from ever becoming "too big to fail" in the future.  However, Dodd-Frank does none of this.  Rather, it imposes tough new regulations . . . on smaller institutions while largely exempting the big banks.  Thus, the big banks which have disgusted most Americans get away with robbing the public treasury (i.e. the middle-class taxpayer).  Even where the regulations apply to these large banks, they have the resources to sit back and do nothing while the smaller institutions struggle and die.  Furthermore, Dodd-Frank institutionalizes the bailout by merely adopting the ad hoc approach that was needed in '08 as standard procedure rather than actually addressing the underlying flaws in the system.  Once again, there is clearly a lack of ability or willingness from the president to do what's actually necessary.

Destruction Rather Than Construction or Even Reformation
Obama has been relatively active in the sphere of administrative law.  This can be seen in his involvement with the bailout of the auto industry and the proposed oil pipeline from Canada.  Interestingly, each case of his involvement actually destroys the framework which is needed for economic recovery.  Obama himself makes much ado about his intervention to "save" the auto industry.  However, the decision to direct TARP money to the auto industry was made under the Bush administration.  Obama's decision to save the car companies amounted to little more than bringing somebody in to do precisely what Mitt Romney had been saying needed to be done all along, i.e., taking the companies through structured bankruptcy so that they could renegotiate their contracts and have many of their debts forgiven and come out on the other side as more structurally sound companies.  Having brought a specialist in, Obama then interjected himself and forced the process along a path which is contrary to bankruptcy law.  According to the law, certain investors with preferred shares collect any available monies first; all other stakeholders and creditors collect from whats left.  Obama, however, decided to subvert the law by allowing the union, which did not have preferred shares, to collect ahead of those stakeholders who did.  While the value of workers over investors may be laudable (although that is debatable and smacks oddly of Soviet Communism), Obama's actions were plainly contrary to established law.  Obama and other Democrats now complain that companies have lots of money on their books but aren't spending or investing it.  The obvious reason is that there is very little incentive to invest money when the rules aren't followed by the only ones authorized in any way to use force, i.e. the government itself.  So long as the specter of Obama's arbitrariness hangs over the business world, people will not invest on the scale that is needed for an economic recovery.  Another example of the arbitrariness of Obama's administrative policies is found in the Keystone XL Pipeline.  The projected path had been extensively studied to determine its environmental impact, and it was approved.  Then, unable to accept that not every cause is a winner, or even the basis of sound policy, radical environmentalists protested.  They succeeded in getting Obama's attention and he subsequently cow-towed to these radicals, stepping into the process and overruling the determination that the path for the pipeline was OK.  The project is now delayed as a new path had to be found and studied and approved, and hopefully not torpedoed by the President again.  These are only two examples, but there are others (such as the labor dispute with Boeing).  The tendency of Obama's administrative policies is to subvert established legal frameworks when they fail to match up to his own standards.  Under such conditions, uncertainty and instability are established and no undertaking which requires large sums of money and an extended period of time can be fully executed in confidence.  What we have seen, is not Obama the reformer, bringing laws into conformity with his views of justice; nor have we seen Obama the constructor, creating new standards and procedures; but rather, Obama the destroyer, subverting established law and procedure with his own arbitrary standards.

Unacceptable in 2012
The foregoing reasons make Obama an unacceptable choice for 2012.  This does not make a positive case for his main opponent, Mitt Romney, but it does mean Obama is not a real option.  Now, some will probably say that conceding to the proposition that Obama is not an acceptable choice necessarily hands the White House to Romney.  That may be true insofar as the wool remains pulled over the eyes of the electorate.  People need to realize that they should vote according to their conscience; not for the candidate that their emotions or animalistic instincts or even the media or their peers tell them to.  In order for one's vote to really be meaningful, one must vote for the candidate which one's most reasoned judgment indicates will govern according to the same standards as one harbor in one's own conscience.  This includes candidates from "unconventional" parties.  A vote for the lesser of two evils will always result in evil.  A vote for the most good of many options will occasionally result in goodness.  One standard that I think should be in everybody's conscience would be a general good faith effort to improve America.  Because Obama is either inept or unwilling to make the decisions necessary to improve America, I think a vote for Obama is a terrible mistake.  And just because the foregoing doesn't make a positive case for Romney doesn't mean that there isn't a positive case to be made.  But that is a subject for another day, which Romney himself should be most capable of expressing.

Making Sense of the Obamacare Ruling

Supreme Politics

Anyone who honestly thinks that the Supreme Court is above politics holds a pleasantly naive understanding of the law and political science.  This includes Justice Scalia to the extent that he's serious when he says that the Court doesn't consider politics (although I think he's just attempting to maintain the useful myth that the Court simply cannot be affected by politics).  Ideally, the Supreme Court would be completely free to stand firm on rules of law and bend the public to those standards.  However, as I believe I have discussed earlier, all rights (and indeed all laws) are only upheld by the Court to the extent that 1) the Court has a reason to believe that it should uphold those particular rights (or laws), and 2) the Court will not face a catastrophic loss of legitimacy as a result of upholding those rights (or laws).  The fact that our rights can be subject to infringement by political pressure certainly justifies removing the Court from that political pressure, and that is why the Supreme Court is the least political of all the branches.  But the reality is that if the Congress and the President can enact laws and enforce them with broad public support and over the objections of the Court, then all rule of law is forfeited for a time.  Some instances of this are President Jackson simply ignoring the judicial branch and forcing the Native Americans to relocate to Oklahoma and President Lincoln simply ignoring the judicial branch and unilaterally lifting the right to writs of habeas corpus.  Both of these instances ushered in fairly long eras of near complete powerlessness of the judicial branch.  The Court must occasionally consider compromising on the existing rules of law in order to maintain its institutional legitimacy and, thereby, its power and the rule of law generally.

On the other side of examples, the Court famously made a determination to preserve its institutional legitimacy, and therefore its power, in the "switch in time to save nine."  This occurred during the New Deal era, and regardless of one's opinion of those policies, they enjoyed broad public support at the time (as well as currently, to be frank).  The Court however repeatedly struck down provision after provision.  President Roosevelt challenged the Court by floating the idea of simply increasing the number of justices on the bench, allowing Roosevelt to nominate all the new members, and all of whom would support his provisions.  In order to shore up the legitimacy of the Court and avoid such a drastic interference with the Judicial Branch, Justice Owen J. Roberts switched his voting to support the New Deal provisions.  While some still express dismay over this change in course (the most notable being Justice Thomas), the fact of the matter is that this switch preserved the legitimacy of the Court, allowing it to issue such controversial rulings (at least for the time) as Brown v. Board of Education and Roe v. Wade without suffering the kind of debilitating loss in public support that would presage an era in which the rule of law is conspicuously absent.  (Another notable example is when Chief Justice Marshall refused to uphold claims to land by an individual who bought the land from a certain Indian tribe, in clear contradiction to the rules of property law.  He refused to follow the "rule of law" because its not the province of the Court to call into question claims to annexed land by the United States as that would set up the Supreme Court as having the power to de-legitimize the entire political underpinnings of the nation, of which the Court is a part.)

Applying these considerations to the ruling on Obamacare, there is a clear case to be made that Chief Justice Roberts "switched" in order to preserve the legitimacy of the Court, thereby preserving the rule of law generally and protecting the people from even greater tyrannical acts which could be contemplated by the President and his various "Czars" or even Congress.  Public support of the Court is at historical lows, due in large part, no doubt, to President Obama's shameless attacks on the Court.  Another defeat of the Democrat agenda by the Supreme Court during an election year would subject the Court to a level of political attack which could further erode its legitimacy.  Just imagine of the Court suffered from such low public support as Congress currently does.  However, by handing this victory to the Democrat agenda, the Court can avoid the criticism that it's rulings are ideological rather than based in good legal reasoning.  While it can be discouraging to see the Court succumb to the attacks of a President, one must bear in mind the reality that the independence of the Court depends upon the support of the people.  The solution to this problem is not in reforming any particular institution, as there is no way to escape political realities, but to hold respect for the Court individually and collectively, politically punishing those who encroach on the Court's independence.  Only then can we guarantee the Court's independence and thereby enjoy the rule of law.  At any rate, Chief Justice Roberts has expressed sensitivity in the past regarding the legitimacy of the Court, and I believe it would be naive to think that these political calculations did not play a significant role in Roberts' decision.  However, it would be foolish, shortsighted, and a grave disservice to the intellect of Roberts to end our analysis here. 


Limiting the Commerce Clause

The dominant issue in the debate over Obamacare was the scope of the Commerce Clause.  The history of the Commerce Clause is interesting in that it has gone through various periods of interpretation, ranging from authorizing expansive powers to authorizing only limited powers.  Under Marshall and for some time thereafter, the Commerce Clause was interpreted expansively - its only significant limitations were to be found in the political process.  This limitation worked to restrict the powers of the Federal government for quite a time.  However, as a laissez-faire economic theory emerged and was integrally connected to natural law legal theories, the Commerce Clause began to be restricted by the Court rather than just through the political process.  These restrictions became even more ingrained as the interests of the industrialist powers in the North and the Southern interest in limiting the powers of the Federal government after Reconstruction converged.  However, as discussed above, the Great Depression spawned a desire for expansive powers under the Commerce Clause which were eventually upheld.  The famous case which exemplifies this switch during the New Deal era is Wickard v. Filburn.  In Wickard, the Court upheld a law which sought to fix the price of wheat and included a provision which restricted wheat farmers to growing only a particular amount of wheat.  If a farmer exceeded his allotted amount, even for home consumption, he would be subject to punishment.

The Constitution authorizes Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  U.S. Const. art. I, § 8, cl. 3.  Therefore, any law passed under this 

authority must exercise a power which is classifiable as a "regulation."  The power to regulate in the context of the Commerce Clause was defined by the Court in Gibbons v. Ogden as the power to "prescribe the rule[s] by which commerce is to be governed."  Gibbons v. Ogden, 22 U.S. 1, 196 (1824) (emphasis added).  The Court also stated in Gibbons that commerce "is regulated by prescribing rules for carrying on that intercourse."  Id., at 190 (emphasis added).  In accordance with the expansionary effect of the Necessary and Proper Clause, the Court declared that "[t]his power [to regulate interstate commerce] . . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the [C]onstitution."  Id., at 196.  As recognized by the Court, those limitations which "are prescribed in the [C]onstitution, id., include those limitations "which inhere[] in the [C]onstitutional grant" of power itself.  NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 30 (1937).  Thus, Congress' authority under the Commerce Clause is to lay out the rules according to which individual behavior must conform while engaging in interstate commercial activity and is limited to that power only.

As such, the Commerce Clause recognizes a clear national interest in interstate commerce, or the national market, and grants Congress the power to regulate individuals' activities in relation to the market pursuant to political and public policy interests.  The Court elaborated on the power to regulate interstate commerce in Jones & Laughlin, stating that "the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement'; to adopt measures 'to promote its growth and insure its safety'; 'to foster, protect, control and restrain.'"  Id., 301 U.S. at 36-37 (citations omitted).  However, Congress' power under the Commerce Clause is still subject to the inherent limitation discussed above - the power to regulate is still only the power to "prescribe the rule[s]."  Gibbons, 22 U.S. at 196.

A second intrinsic limitation on the power granted to Congress by the Commerce Clause was delineated in Gibbons when the Court concluded that "commerce 'among the several States,'" id., at 189, includes commerce which is intermingled with multiple States, or "commerce which concerns more States than one."  Id.  Therefore, should actions under the broadly defined "commerce" cross the boundaries of a State or affect another State, that action is said to be "commerce among the several States," or "interstate commerce."  See id.  Thus, a second intrinsic limitation on Congress' powers under the Commerce Clause is that the activity over which power is being exercised must be in the set of activities classified as "interstate commerce."

In Jones & Laughlin, the Court reasoned that "[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control."  Jones & Laughlin, 301 U.S. at 32.  The Court has recently elaborated on this rule in Lopez by stating that "the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce."  Lopez, 514 U.S. at 559 (emphasis added).  An individual's activities which in themselves do not have a substantial effect on interstate commerce may nonetheless be regulated by Congress if those activities do have a substantial effect when aggregated with like activities of many other individuals.  See Wickard, 317 U.S. at 127-128.  Therefore, Congress can regulate activities which substantially affect interstate commerce, including an individual's activity which does not substantially affect interstate commerce in itself, so long as that activity, when considered in the aggregate with other similar actors, does substantially affect interstate commerce.

The Court in Raich declared that it "need not determine whether respondents' activities . . . substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding."  Raich, 545 U.S. at 22.  However, the Court has rejected as too attenuated a line of reasoning which "follow[s] the but-for causal chain from the initial occurrence of violent crime . . . to every attenuated effect upon interstate commerce."  United States v. Morrison, 529 U.S. 598, 615 (2000).  Thus, there is a proximate causation requirement connecting the underlying act passed by Congress to the substantial effect on interstate commerce.  As the Court explained in Lopez,

the scope of the interstate commerce power ‘must be considered in the light or our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local.’ 

Lopez, 514 U.S. 557 (citing Jones & Laughlin, 301 U.S. at 30).  Therefore, while it is only necessary for the Court to find that Congress had a rational basis test for concluding that particular intrastate activities have a substantial effect on interstate commerce, the rational basis test is limited by the principle that the line of reasoning must preserve a realm of power over commerce exclusively to the States.

The reservation to the States of an exclusive realm of power over commerce has been a recent development, achieved by requiring that the intrastate activities being regulated by Congress must be non-economic.  See, e.g., Lopez, 514 U.S. at 559-560.  In establishing this requirement, the Court observed that they had "upheld a wide variety of congressional Acts regulating intrastate economic activity . . . . [T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.  Even Wickard . . . involved economic activity."  Id., at 559-560 (emphasis added).  In Morrison, the Court reaffirmed its analysis in Lopez, saying that "a fair reading of Lopez shows that the noneconomic . . . nature of the conduct at issue was central to our decision in that case."  Morrison, 529 U.S. at 610 (emphasis added).  In Raich, the Court defined "economic" as "'the production, distribution, and consumption of commodities.'"  Raich, 545 U.S. at 25.  Thus, the growing of a product, e.g. wheat as in Wickard and marijuana as in Raich, can therefore be considered economic because that activity can be classified as "production."  Hence, Congress' power to reach intrastate activities which have a substantial effect on the national market only applies to intrastate activity which is itself economic activity.

The Obamacare ruling seems to further solidify the emergence of a new era of Commerce Clause jurisprudence in which the Court limits the scope of Congressional power by recognizing an exclusive realm of power over commerce for the States.  In the Obamacare ruling, Justice Roberts emphasized that the Congressional power to regulate commerce "presupposes the existence of commercial activity to be regulated.  National Federation of Independent Business v. Sebelius, S.Ct. at 16 (2012).  "If the power to 'regulate' something included the power to create it, many of the provisions in the Constitution would be superfluous."  Id.  Furthermore, Commerce Clause precedent "construing the scope of the commerce power . . . have one thing in common: They uniformly describe the power as reaching 'activity.'"  Id.  "Wickard has long been regarded as 'perhaps the most far reaching example of Commerce Clause authority over intrastate activity,' Lopez, 514 U.S., at 560, but the Government's theory in this case would go much further."  Id., at 17.  "Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and . . . empower Congress to make those decisions for him."  Id., at 16.  "Accepting the Government's theory would give Congress the . . . license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government."  Id., at 18.  "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."  Id.  "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.  Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."  Id., at 20.  Thus, the Court has extended the trend to moderate Congress' power under the Commerce Clause by enforcing an exclusive realm of power over commerce for the States; an individual mandate on a State level is perfectly Constitutional, at least from an analysis considering the power to affect commerce.

John Roberts' John Marshall Moment?

What Roberts gives with the one hand, he seems to take with the other.  In a move that has infuriated Conservative partisans, Roberts upheld the individual mandate as a valid exercise of Congress' powers under the Tax and Spend Clause.  Roberts' ruling inevitably recalls a similar ruling early in our Nation's history, Marbury v. Madison, and I suspect that Justice Roberts would like his ruling to be analogous to Justice Marshall's in Marbury.  A brief explanation of Marbury may therefore inform our analysis of the Obamacare ruling.

"In 1800, the incumbent President, John Adams, lost in a hotly contested election. . . . Jefferson ultimately prevailed, based on a vote in the House of Representatives.  Adams was a Federalist, and the Federalists were determined to exercise their influence before Republican, Jefferson, took office. . . . On February 13, 1801, Congress enacted the Circuit Judge Act, which reduced the number of Supreme Court Justices from six to five, decreasing the opportunity for Republican control of the Court.  The Act also eliminated the Supreme Court Justice's duty to serve as circuit judges and created 16 new judgeships on the circuit courts. . . . On February 27, 1801, less than a week before the end of Adams's term, Congress adopted the Organic Act of the District of Columbia, which authorized the President to appoint 42 justices of the peace.  Adams announced his nominations on March 2, and on March 3, the day before Jefferson's inauguration, the Senate confirmed the nominees. . . . A few commissions, including one for William Marbury, were not delivered before Jefferson's inauguration.  President Jefferson instructed his Secretary of State, James Madison, to withhold the undelivered commissions.  William Marbury filed suit in the United States Supreme Court seeking a writ of mandamus to compel Madison, as Secretary of State, to deliver the commission.  A writ of mandamus is a petition to a court asking it to order a government officer to perform a duty."  Justice Marshall was placed in an awkward position.  On the one hand, he himself was a Federalist, generally striving to solidify the Federal Government's power after the disastrous experiment with the Articles of Confederation.  There was undoubtedly a large amount of political pressure from his peers to hamper Jefferson's efforts to implement the Republican agenda by forcing him to appoint their man to the position.  On the other hand, "Marshall had no choice but to deny Marbury relief: the Jefferson adminstration surely would have refused to comply with a court order to deliver the commission.  In addition, there was a real possibility that Jefferson might seek the impeachment of the Federalist justices in an attempt to gain Republican control of the judiciary."

Therefore, Marshall "betrayed" is peers and handed Jefferson and the Republicans a victory.  However, what he seemed to give with one hand, he took away with the other.  Madison would not be compelled to deliver the commission to Marbury, but in order to reach that conclusion, Marshall laid the groundwork for actually advancing the Federalist agenda.  First, he protected the Court from political interventions by Jefferson, thereby assuring that the Federalist interpretation of the Constitution would persist in the Court for some time.  Second, he established the principle of judicial review of both legislative and executive acts, simultaneously bringing Jefferson and the Republicans under Federalist scrutiny in the Court while expanding the power of the Federal Supreme Court - it would have been very easy to extend the English jurisprudential system in which no court has the authority to invalidate an act of the legislature.  If there is an analogy between the Obamacare ruling and Marbury, it will be in one of these regards: 1) protecting the independence of the Court; 2) advancing a particular political agenda while seeming to advance its opposite; and/or 3) expanding the power of the Federal Government.

Protecting the Independence of the Court

This was discussed to some extent in the section above, entitled Supreme Politics.  However, here the point is slightly different that merely the legitimacy of the Court.  Here, the point is to keep the Court free from the interfering hands of politicians in either the Legislature or the White House.  The two points are certainly related - to the extent that the Court is viewed as legitimate, there is less incentive for politicians to meddle with the Court, but if the Court is viewed as illegitimate, there is greater incentive for politicians to meddle.  Therefore,  protecting the legitimacy of the Court will tend to protect the political independence of the Court.  Such political independence is clearly desirable both to protect the principle of separation of powers (as a desirable form of government in itself) and to prevent "the mob" from determining the outcomes of legal proceedings.  Therefore, the Obamacare ruling has at least this parallel with Marbury - that the Chief Justice took an unexpected action in order to preserve the independence of the Court, thereby preserving the separation of powers and the rule of law.

Advancing a Particular Political Agenda While Seeming to Advance Its Opposite

First, Justice Roberts may have freed the Court for some time from the blatant attacks of President Obama and some of the Democrats.  By giving them this victory, their critique, that the Court has been "hijacked" by a bunch of conservatives who are intent on advancing their own political cause, has been blunted.  They can no longer credibly argue that the Court is at the mercy of conservative ideologues.  The potential parallel to Marbury here is that Justice Roberts will now be free to make decisions which are informed from his own political views without being demonized in any credible fashion, just as Marshall preserved the Federalist bent in the Court.  However, the concern is that Roberts has actually tipped his hand that he succumbs to pressure.  Therefore, my particular concern is that Roberts hasn't actually freed himself to make rulings without being attacked, but has actually invited greater interference, but how this plays out has yet to be seen.  At any rate, I do believe that this was part of Roberts' calculation.

Second, Justice Roberts may have actually brought the Congressional power to Tax under greater scrutiny.  Just as the above consideration, how this plays out has yet to be seen.  However, Roberts may have followed in his mentor's footsteps.  Justice Rhenquist successfully ushered in the new era of a more limited power under the Commerce Clause by succinctly describing the scope of that power in a manner which was both consistent with precedent but also laid the groundwork enforcing clear limits.  Here, Roberts may have done the same with the Tax power.  He has fairly succinctly described the power of Congress to Tax, but has also described some limiting principles.  The concern here is that by allowing Congress to tax people for merely existing, the so-called limiting principles are far from being truly restrictive.  But, like I said, how this plays out has yet to be seen.  My hope is that Justice Roberts has done precisely this - upholding a far-reaching tax, but laying the groundwork to advance his political philosophy which would ultimately limit that power to tax.  I suspect that this will not play out as I hope because, as indicated above, it would seem that in order to meaningfully enforce the restrictions indicated, the Court will have to either outright reject the present ruling or to make such distinctions as will make clear that the ruling does NOT mean that Congress can tax people for merely existing.  

However, there is at least one more interpretation, and one which I think is more likely that the previous two.

Expanding the Power of the Federal Government

The final potential parallel with Marbury is that Justice Roberts is actually a closet Federalist, i.e. his true political philosophy is one which seeks to secure and even extend the power of the Federal government.  While I have no doubt that Roberts is more supportive of a powerful Federal Government than the other "conservative" justices, I would like to think that he hasn't actually staked out a long-lasting stance where he sides with the "liberal" justices.  However, this may be the case.  He may have announced himself to be a big-government conservative.  Thus, in order to advance his political philosophy which would allow for actions by the Federal Government on many issues, he simply had to support the power of the Federal Government to act on these matters in general, and that the true limitation is to be found merely in the political process.  From what he has written in his opinion, this may well be the best explanation.    

Therefore, I suspect that this last possibility is most probable, and that Roberts does see his ruling as being analogous to Marbury.  Roberts hopes to have preserved the independence of the Court, thereby allowing him to issue rulings with greater freedom from the attacks of politicians.  Roberts has staked out his position as a big government conservative, allowing for a large amount of Federal action on various matters, like Justice Marshall.  Along this line, Roberts views his ruling as actually advancing his political views by 1) allowing the federal government to act on a plethora of issues, and 2) exposing President Obama to the attack of being an oppressive taxer and hopefully ushering in a rather immediate political sensibility more attuned to Roberts' own big government conservatism.  Indeed, the day may come, not too long from now, that Republican partisans will rely on the powers that Justice Roberts has recognized, and that those Republicans will, in the long run, have to thank Roberts.  At least, I suspect that that is Roberts' own view, and that is how I make sense of the Obamacare ruling.

Inalienable Rights as Legal Rights?

Inalienable rights do not change or differ depending on time or place. Inalienable rights derive from the nature of the necessary and symbiotic relationship between individuals and society at large. To call them inalienable, however, is not to say that they cannot be subjugated by law. History, and indeed contemporaneous events, demonstrate that many governments do deny their citizens their inalienable rights. To call rights inalienable, then, is to say that in denying people the free exercise of those rights is to do violence to them and to society itself and is therefore immoral, destructive, and unsustainable, making the government which systematically denies such rights to its people utterly illegitimate.

Before analyzing various principles which are alleged to be inalienable rights, a word regarding the nature of rights themselves is warranted. I propose that a right is nothing more than a rational expectation derived from the framework of social relations. The rational expectation may derive, as in the case of transitory rights, from a statute, a Constitutional provision, or other explicit agreement which is subject to change. Inalienable rights, however, derive from the relationship of society and individuals itself, and cannot legitimately be subjugated by any such transitory right. They are implicit rights, rights which exist as a necessary part of the relationship between individuals and society. However, every right enforced by law is ultimately derived from transitory rights expressed in statutes or Constitutions. Even the rights defined in a Constitution are transitory because a Constitution must provide for changes in society and for greater awareness of rights. In other words, as a social compact, a Constitution is itself subject to change, and must be so.

The challenge then is to determine how and to what extent inalienable rights can become governing principles guiding the application of all other legal rights. It seems to me, that the key lies in beginning the inquiry with the judiciary. The judicial branch should be so steeped in commitment to inalienable rights that even if a Constitution should express something contrary to them, the courts will be able to subjugate the Constitutional provision to the inalienable rights. This however, would seem to provide an enormous amount of power to the courts, a power which might become tyrannical in practice. On the other hand, the courts are in themselves incredibly weak. The great secret of their power lies in not issuing rulings which are liable to be disregarded by the other branches of government, or if their rulings are so disregarded, to be able to muster the public support to "punish" the other branches by electing others in place of those who have disregarded the courts. Thus, the courts are actually incapable of tyrannically governing the norms of society because broad public discontent with their rulings results in an epoch in which the courts lose almost all legitimacy. This has happened on several occasions in American history. However, these examples are not so much examples of checks on the tyrannical tendencies of the courts as they are of the courts' incapability to stem the tide of illegitimate, tyrannical actions which enjoy broad public support.

Thus we see, that in all reality, legal recognition of inalienable rights depends on broad public support, and willingness to act, for those rights. This is not to say that inalienable rights are themselves whatever a lot of the people want. Rather, the legal effect which inalienable rights enjoy will be determined by the commitment of the people to them. Thus, it is possible for public support to depart from inalienable rights in favor of laws which might be contrary to them. The tragedy of such a situation is that the people are then so un-self-aware that they don't even realize the violence that they are doing to themselves. It is therefore essential to a legitimate government that the people 1) are capable of expressing their support or disfavor for certain provisions in a meaningful way, and 2) are educated enough to understand what rights are inalienable and to understand why they are inalienable. Thus, oddly enough, we find that in a legitimate government, people have the right to some amount of free speech and freedom of conscience as well as the right to a basic education. These of course need to be further elaborated, but serve as a good starting point for a discussion of inalienable/fundamental/ universal/human rights.

The Creation of a Good Society

I see in the Pilgrims our true American heritage.  Today, they are largely ignored or ridiculed for their inconsistencies regarding religious freedom, but this stems from the notion that the concept of religious freedom was their biggest contribution to the world, whereas it is much more than that.  Ignoring or belittling the Pilgrims for what we perceive as inconsistencies does a great disservice to ourselves by blinding us to our true American heritage.  The Pilgrims were not so interested in the idea or principle of religious freedom as such.  They were more interested in the freedom to live their lives and to create a society based upon the principles they believed in, to create their own Good Society.  "Disgusted by the habits of a society which the rigor of their own principles condemned, the Puritans went forth to seek some rude and unfrequented part of the world where they could live according to their own opinions and worship God in freedom."  "These men possessed, in proportion to their number, a greater mass of intelligence than is to be found in any European nation of our own time [1830's].  All, perhaps without a single exception, had received a good education, and many of them were known in Europe for their talents and their acqui[sitions].  The other colonies had been founded by adventurers without families; the immigrants of New England brought with them the best elements of order and morality; they landed on the desert coasts accompanied by their wives and children.  But what especially distinguished them from all others was the aim of their undertaking....they [did not] cross the Atlantic to improve their situation or to increase their wealth; it was a purely intellectual craving that called them from the comforts of their homes; and in facing the inevitable suffering of exile their object was the triumph of an idea." (Democracy in America, Alexis de Toqueville) This idea was Puritanism.  Whether you agree with the Puritan ideal or not, they believed that the principles of the Puritan faith would establish a Good Society. Being unable to establish it or to live it freely in England, they set out to a new land in order to create their Good Society, founded on the principles of Puritanism (which helps explain the inconsistencies in religious tolerance we perceive today).  It is probable that never before in the history of the world had a group of educated people separated themselves from society with the conscious purpose of creating their own Good Society and constructing their own social contract.  This 'Social Liberty' was the freedom they sought (as opposed to religious freedom) and this is our true American heritage.

The creation of the United States of America is an extension of this noble heritage.  The American people were accustomed to being able to establish themselves in societies they preferred and shuddered at the idea that an island thousands of miles away would presume to tell them how to live.  Jefferson referenced this sentiment, citing an attempt on the part of the American colonies to reconcile themselves with Britain, when he wrote, "We have reminded them of the circumstances of our emigration and settlement here." The American commitment to Social Liberty was so strong that they fought the strongest nation in the world hoping desperately to preserve it. 

Coupled with this commitment to Social Liberty, the seemingly endless frontier offered not only amazing natural resources, but a source of hope and inspiration; a 'new world' where anyone's Good Society could be established.  I am well aware of the resulting plight of Native Americans, and how their versions of a Good Society were unfairly trampled underfoot.  The Americans and Europeans certainly could've done much better in engaging the Native Americans.  However, focusing on this once again falls into the problem of focusing on one aspect of the times and applying our current points of view to it, at the risk of blinding us to all else that was good.  The lessons from the failures of the past must be learned, but it is also necessary to embrace the good so that we can determine its value to us today. The settling of the American frontier had its positive side as well as its negative.  These coincided remarkably with the settling of the East Coast.  There were two classes of settlers, adventurers and devoted intellectuals.  Adventurers brought with them drunkenness, disorder, and violence while devoted intellectuals brought with them vision, order, productivity, and experimentation.

The current political, economic, and social crises in America stem from an increasing polarization of the citizens.  As unique individuals, we all have a unique view of what constitutes a Good Society.  When the system doesn’t operate ‘correctly’ or when we see something happen and say, ‘That’s not right,’ we are comparing the reality which surrounds us with our own perception of a Good Society.  Though we are often not fully aware of what our own version of a Good Society is, we each believe in that version so strongly, so powerfully, so personally that we each believe we know what is most important, and that our particular view is the mold for the rest of the nation.  This perception, buried deep within us, is not unique to any individual, any party, or even any single faction within a party.  Parties and factions exist precisely because of our strong beliefs in our own perspectives.  However, the idea that anyone's beliefs (yours or mine) are correct for everyone else lies at the heart of the problems facing America. The majority of Americans today are educated, but there is no allowing for the expression of this education in the establishment of today's Good Societies. 

Differing views of a Good Society easily come into conflict on the national level.  It is easy to see a great variety of opinions on all topics and if we are all to remain members of the same society, we must either be continuously in conflict against each other or we must somehow be reconciled.  The United States is currently in a state of perpetual conflict because we are all trying to tell each other what the Good Society should be, rather than recognizing that there are vastly different conceptions of the Good Society.  When one considers the number of citizens, the free exchange of ideas, and political representation, among many other factors, it can be difficult to imagine the country any other way.  Hence, party politics has assumed a level of dominance in America, even during Washington’s presidency.  It can be truthfully said that the persistence of the United States as a single body politic or as a single society in the face of ongoing internal conflict is a uniquely American triumph. However, this perception that our particular view is best and needs to be imposed on the national level is intolerant and, if realized, destructive of the very diversity we praise, leading to the creation of a 'centralized administration' to impose that will on the rest of the nation.

In his work, "Democracy in America", M. de Toqueville commented on the dangers of centralized administrations. "[A] centralized administration is fit only to enervate the nations in which it exists, by incessantly diminishing their local spirit.  Although such an administration can bring together at a given moment, on a given point, all the disposable resources of a people, it injures the renewal of those resources.  It may ensure a victory in the hour of strife, but it gradually relaxes the sinews of strength.  It may help admirably the transient greatness of a man, but not the durable prosperity of a nation.... However enlightened and skillful a central power may be, it cannot of itself embrace all the details of the life of a great nation.  Such vigilance exceeds the powers of man.  And when it attempts unaided to create and set in motion so many complicated springs, it must submit to a very imperfect result or exhaust itself in bootless efforts.... [Centralization] easily succeeds, indeed, in subjecting the external actions of men to a certain uniformity, which we come to love for its own sake, independently of the objects to which it is applied, like those devotees who worship the statue and forget the deity it represents.... it excels in prevention, but not in action.  Its force deserts it when society is to be profoundly moved, or accelerated in its course; and if once the co-operation of private citizens is necessary to the furtherance of its measures, the secret of its impotence is disclosed.  Even while the centralized power, in its despair, invokes the assistance of the citizens, it says to them: "You shall act just as I please, as much as I please, and in the direction which I please.  You are to take charge of the details without aspiring to guide the system; you are to work in darkness; and afterwards you may judge my work by its results."  These are not the conditions on which the alliance of the human will is to be obtained; it must be free in its gait and responsible for its acts, or (such is the constitution of man) the citizen had rather remain a passive spectator than a dependent actor in schemes with which he is unacquainted."

Sadly, the history of the United States only shows an increasingly centralized administration through which the party in power may impose its will on the rest of the nation, creating an increasingly homogenous society, while leaving hostility and apathy in its wake. The dynamic strength of America is being sapped. I for one would prefer to see this level of conflict turned to productivity and a flourishing in society (a sort of societal eudaimonia) rather than the current levels of hostility and apathy.  I would rather see tolerance and coexistence and a sharing of ideas towards productive resolutions of problems than to see our country as a miracle because it hasn't imploded on itself. 

By no means do I intend to offer some utopian society without government, as both political extremes advocate.  Some communist utopia is as illusory as some free-market/free-society utopia.  These extremes are clearly unrealizable, and the slightest amount of reflection only shows their absurdity.  Government is necessary and good.  However, I would argue that much is to be gained by recognizing that far fewer values than we might expect are truly "fundamental." Those values which are Constitutionally guaranteed throughout the Nation, should be those which arise necessarily from the mutually dependent relationship between individuals and society. All else, like it or not, is subject to local flavor.