The Freedom Bulletin

The Defense of Marriage Act (DOMA) and the Affordable Care Act (ACA), also known as Obamacare, have both been in the news recently – DOMA because the Obama administration announced on Thursday that they would no longer defend it against lawsuits, and the ACA because a judge upheld its constitutionality against a religious-freedom-based challenge a week ago. Other than that, these two laws don’t have much in common. But this made me think, why did the Obama administration decide DOMA was unconstitutional while enthusiastically defending the constitutionality of the ACA?

DOMA defines marriage as between one man and one woman and, as a result, denies same-sex spouses of federal employees some benefits that are given to opposite-spouses. The Obama administration decided it violates the Equal Protection Clause of the Fifth Amendment. As Attorney General Eric Holder wrote, “The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus that the Equal Protection Clause is designed to guard against.”

The Democrats’ health reform law, the ACA,  makes it illegal (for the vast majority of people) not to buy health insurance, and punishes people who disobey this requirement with fines. The Justice Department’s website has a prominent page dedicated to its “vigorous” defense of the law in federal courts.

Why does the Obama administration believe Obamacare is constitutional but DOMA is not? DOMA merely stops some people from partaking in a benefit offered through their spouse’s employment with the federal government. It might be fairer if both same-sex and opposite-sex couples  were offered the same benefits, but (a) the fairest thing for gay, straight, bisexual, asexual, married, and unmarried people would be not to offer benefits to spouses at all but only to actual employees; and (b) people don’t have a fundamental right to government-given health benefits based on their spouse’s employment. The ACA, on the other hand, outlaws the decision to opt away from health insurance and instead pay for all of one’s health services oneself. In other words, it takes away the ability to spend one’s own money as one chooses, which is a fundamental right.

Wouldn’t it make more sense to allow people to form whatever romantic relationships they want (or none at all) without government labels or interference, and to choose whether to buy insurance or pay for health services in cash? I sure think so, but I guess that’s just me.

This Thanksgiving, I am thankful for John Tyner, the man who filmed and blogged about his encounter with the TSA, during which he famously told them, “If you touch my junk, I’ll have you arrested.”

In fact, I am thankful for everyone who has ever stood up to the man or fought for freedom. When the TSA began rolling out the strip-search machines with a vengeance because of the failed “underwear bomber” last Christmas, I feared that the American people would just accept this atrocity as a necessary evil, foolishly believing that any increase in safety is good, regardless of the cost in liberty. Thankfully, I was wrong. No matter what the outcome of the current TSA protests, I am proud to live in a country where people still believe that liberty is more important than security, that people have rights that can never be violated, and that requiring people to let their private parts either be seen or touched in order to board an airplane.

I am thankful for the Bill of Rights and the freedoms enshrined therein, as well as all people who, deep in their hearts, believe in liberty.

Happy Thanksgiving!

I don’t usually go to sites like AmericanProgress.org, which probably isn’t surprising given my mostly libertarian / conservative political views. But I recently happened upon an article at that site by Ian Millhiser, claiming that “it is absolutely clear that the health reform bill survives constitutional scrutiny,” that it was “clearly erroneous” to allow Virginia Attorney General Ken Cuccinelli’s lawsuit against the law to proceed, that the lawsuit is “baseless” and “wholly without merit,” and that the decision “sadly allows him to continue to waste taxpayer dollars on this frivolous lawsuit.”

I disagree with these claims, to say the least. But there are two arguments in particular that Millhiser makes that I would like to respond to.

First of all, he quotes Justice Antonin Scalia, who once said, “Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” According to Millhiser, everyone agrees that it’s constitutional to ban insurance companies from refusing coverage to people with pre-existing conditions. If this happened but there was no individual mandate requiring people to buy insurance, then only sick people would buy health insurance, and prices would rise. I’m sure everyone doesn’t agree that the pre-existing conditions law is constitutional, but I’ll give him these first two points.

I disagree with Millhiser and Scalia, however, that if Congress has the right to pass a law, it has the right to do whatever it takes to make that law effective. Congress has the right to defend America from foreign invaders, but it doesn’t have the right to institute a draft, in my opinion, even if a draft were necessary for a strong military. Congress has the right to ban the hijacking of airplanes, but in my opinion, it doesn’t have the right to force people to take their shoes off and go through strip search machines. Individual rights come first, and the government is never justified in taking away people’s freedom, even if that is necessary to make a law effective.

Second, Millhiser claims that the individual mandate is equivalent to prohibiting businesses from using racial discrimination against potential employees or customers, since these both involve requiring people to engage in economic activity. This comparison is completely off base.

Banning segregation affects people only if they choose to own or manage businesses, and it affects them only in their role as a business owner or manager, not as a private individual. Additionally, it does not require anyone to engage in economic activity. It simply says that if someone wants to run a business, they must accept all customers regardless of race, and not use race in hiring decisions. Everyone still has the option of not running a business.

The individual mandate, however, tells people that they must use their money to buy health insurance. It tells people what to do with their own, private money that they have earned, and it applies to everyone.

So anti-segregation laws and the individual mandate are vastly different. One applies only to people who choose to run businesses and applies only when they are acting in their professional capacity. The other applies to all people in their role as private citizens. It is completely reasonable to find the former constitutional but not the latter.

A few days ago, the Daily Kos (of all sites) had a great post arguing that liberals should support all of our constitutional rights, including our Second Amendment rights.

“Liberals can quote legal precedent, news reports, and exhaustive studies. They can talk about the intentions of the Founders. They can argue at length against the tyranny of the government. And they will, almost without exception, conclude the necessity of respecting, and not restricting, civil liberties.

Except for one: the right to keep and bear arms.”

Read the rest here.

I wish more liberals thought like this! Liberalism used to mean a philosophy that is basically the same as present-day libertarianism. I’m glad that to the authors of that blog post, it still does!

A company called Wilder Publications decided to put a warning label on its copies of the Constitution, Declaration of Independence, Federalist Papers, Articles of Confederation, Thomas Paine’s Common Sense, and other historical documents. The warning reads:

“This book is a product of its time and does not reflect the same values as it would if it were written today. Parents might wish to discuss with their children how views on race, gender, sexuality, ethnicity, and interpersonal relations have changed since this book was written before allowing them to read this classic work.”

The company has come under a lot of fire for this warning, and I think the criticism is deserved. A warning label might make sense for historical documents that actually are controversial and express hateful or otherwise offensive beliefs. But the Constitution and Declaration of Independence are the basis of the American legal system. There’s nothing offensive about limited government!

I would hope that the beliefs about political philosophy expressed in the Constitution and Declaration remain mostly unchanged and that the Constitution would be basically the same if it was written today. It would be a sad thing if people widely considered the Constitution to be a quaint, old fashioned, historical document that is no longer relevant.

H/T: Rational Nation USA and Fox News