In Defense of Negative Spaces

ABT--OffsideBBCEd Fallone’s post last week on finding negative space in the Constitution got me to thinking about the uses – and dangers – of metaphors in legal thinking. What does it mean for there to be “negative space” in the Constitution. We could think of it, as Ed does, like the open areas in a soccer match (or, for that matter, a football game). Creating negative space opens possibilities. Drawing a defender away creates opportunities.

Ed’s post plays off the fact that the United States Constitution, unlike the Wisconsin Constitution, creates a government of enumerated – and not plenary – powers. (This is one of the reasons that the state constitution looks rather different than the federal charter.) Ed sees the negative spaces as areas of opporunity, but emphasizes filling those “empty spaces” where the Constitution has not created federal authority with … federal authority. The negative space is for government – at least where exigency is thought to be served by the expansion of state authority.

It will surprise precisely no one that I see it differently. In fact, to continue our soccer metaphor, improperly invading them (as the image at the top of this post illustrates) leaves us offside.

Continue ReadingIn Defense of Negative Spaces

CST and Health Care

I’ve been guesting at PrawfsBlawg this month and, inspired by a paper that I am in the process of completing about subsidiarity and the response to the economic crisis, have posted about the importance of encouraging decentralization in decision making, including in health care reform.

Writing at Mirror of Justice, Rob Vischer responds, arguing that health care is different, perhaps falling into that category – identified by John Paul II in Centesimus Annus – of the “needs and common goods that cannot be satisfied by the market system.”

I am in partical agreement. There is nothing about health care that, in and of itself, frustrates the operation of markets. It is not a natural monopoly and there are no intrinsic externalities or “tragedies” of the commons.

The problem, it seems to me, is that health care is like food. There are many goods that people can do without, but some are necessary for survival. We are reluctant to allow people to starve and we don’t want to simply allow those who get sick to die.

This does, I think, require public and private intervention in the market. My suggestion is that considerations of subsidiarity suggest that increases in subsidies may be preferable to increases in centralized control of the provision of services.

Continue ReadingCST and Health Care

A Good Crisis and an Opportunity: The Lessons of Catholic Social Teaching

In conjunction with some papers that I am completing, I have been thinking a lot about the Catholic notion of subsidiarity and what how it may inform our thinking about proposed expansions of the state in response to various “crises,” e.g., the financial seizure, global warming and perceived flaws in the delivery of health care.

Subsidiarity tells us that a “higher order” of authority should not do what individuals or a “lesser order” can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it’s not that simple either. 

Continue ReadingA Good Crisis and an Opportunity: The Lessons of Catholic Social Teaching