The Individual Mandate: A Rejoinder

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

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The Titanic’s Connection to Electronic Communications Privacy

One hundred years ago this weekend, the RMS Titanic hit an iceberg off the coast of Newfoundland and sank. The event was big news then and has remained so for a century, due in no small part to the number of wealthy people who died or were aboard: John Jacob Astor IV; Lucy, Lady Duff-Gordon; Molly Brown; Benjamin Guggenheim; and Isidor Straus. It was a bit as if the Kodak Theatre caught fire during the Academy Awards. (Compare the Titanic to the RMS Empress of Ireland, which sank in the mouth of the St. Lawrence two years later with a loss of more passengers, although considerably fewer crew. Celine Dion sings no songs about the Empress of Ireland.)

There are many fascinating aspects of the story, including the recently uncovered evidence of what exactly caused the ship to sink — not a massive gash in its hull, as had long been supposed, but rather a buckling of the plates over five compartments, due in part to the failure of potentially substandard rivets. For want of a rivet, the Titanic was lost. And there’s also the interesting question of why there was so little panic among the passengers as the ship went down. But I want to focus on one that I’m fairly sure is not going to get covered this week: the connection between the sinking of the Titanic and our modern Electronic Communications Privacy Act, the federal law that makes it a crime to intercept communications without either a court order or the consent of one of the parties.

The connection stems from the role of “wireless telegraphy” — radio, as it’s now known — in the Titanic disaster.

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Connecticut Abolishes the Death Penalty

The campaign to end the death penalty received a boost last week when Connecticut decided to abandon the use of capital punishment.  Connecticut is the fifth state in the last eight years and the seventeenth state overall to do away with capital punishment.

Repeal proposals are being debated in Kansas and Kentucky, and anti-capital punishment groups have also succeeded in getting the issue directly to the voters of California.  An initiative to end capital punishment will be on the California ballot this coming November.

Of course it will take some time before capital punishment is ended in Texas and in assorted states in the Deep South.  But one can be more optimistic than ever before that the United States will eventually end capital punishment. Its continued use is an embarrassment for the nation in the world community.

How irrational, primitive, and bloodthirsty champions of capital punishment seem to this observer.  There is no credible evidence that the possibility of capital punishment has a deterrent effect.  Eye-for-an-eye thinking seems a remnant of Biblical times, if not earlier.  And a genuine and abiding respect for humanity precludes killing even the worst of the wrongdoers among us.

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