Professor Rabkin began by inquiring whether the United States is an exceptional country. Our enemies certainly seem to think so. In fact, they seem to think that Americans are possessed of magical powers. All around the world, there are signs going up in English, signifying people's belief that America possesses the capabilities to save them.
In America, there used to be a discussion about why the country didn't pursue more socialist policies, but as one of our political parties moves to the left and things like the health care bill become realities, the situation has changed. The fact is that America has a very different background political culture, driven by a strong sense of personal responsibility. Americans, by a 2-1 margin, believe that their success is driven by their own personal choices, while every country in Europe has the opposite ratio, with the widespread belief that success is inevitably determined by factors beyond individual control. The United States is also unique, because generally as the wealth of a country increases, the response to religion decreases. This is not the case in the United States, where people actually believe America should become more religious. In addition, in the United States, Americans are overwhelmingly proud of their country, to a greater degree than most other countries.
Professor Rabkin theorized that these factors lead to an inevitable sense that there is something wrong with trying to make America more like Europe, which is especially relevant in the context of health care. We are one of the only countries where states mostly subsist on their own revenue. This is a hard and painful process, since states cannot borrow endlessly or print money, as the federal government is capable of doing. 26 states have now joined lawsuits against health care legislation, reflecting their fear of being stuck with the bill for these new pieces of legislation down the line. The very constitutional culture of the United States creates a wide variety of people who have a very serious belief in rights in the constitution, such as the right to bear arms. This is part of the group that find it so objectionable that Congress can force people sitting at home on their couch to buy health care because they are "affecting commerce." Professor Rabkin's prediction is that even without 5 votes on the Supreme Court to strike down the health care legislation, the debate will continue about this bill for a long time.
Professor Rao spoke of the values that lie behind American exceptionalism, which are linked to the concepts of negative rights that underlie our Constitution. As time goes on, it increasingly seems that social and political limits will be the primary constraints on the welfare state. Professor Rao identified that in fact this country already has a significant welfare state, even though it hasn't reached quite European proportions, and the extent of where the limits lie and where they should lie is a subject of much debate.
Before World War I, debates revolved around liberty and equality. But in recent years, "dignity" has pushed these values to the side and dominated the debate. This is especially true in Europe, where dignity means being part of a community. This is reflected in constitutions and other legislation through the idea that humans have a right to a certain living standard that the state or community will provide for them if they are unable to do so themselves. This has become a constitutional right that is not limited to a conception of social equality, but develops into a "second-generation right" that extends to mean protection and care by the government, with personal dignity depending on receipt of these benefits.
By contrast, in America, dignity is primarily about negative rights, for example, when the government respects our rights to free speech, free assembly, and treats us as equal citizens. This conception runs through the majority of Supreme Court decisions, and this reflects our history and the ideals that underlie our constitutional system. This is largely unique to America, since in many other countries these values take a backseat to communitarian values. Professor Rosen did identify instances where dignity as a positive right has made an appearance in the United States, such as when Franklin Roosevelt asserted that our constitutional rights have failed to ensure human flourishing, which requires a guaranteed minimum standard of living. This has been brought up in a modern context by President Obama, in the context of regulatory reform.
One of the problems with dignity is that it is not a traditional legal term, but simply one that you "know it when you see it." The conception of dignity in the welfare state is not compatible with the concepts of individual dignity that underlie American exceptionalism, and these ideals must be traded off each other to seek an uneasy balance. The Constitution provides a framework, but when it comes down to it, exceptionalism depends on us as individuals.
Professor Marshall began by acknowledging that views of conservative and liberal judicial power have changed over the past thirty years, and there are many possible reasons for this. The idea that the federal government could provide free health care to everyone seems clearly constitutional, so the real problem with the health care bill is the individual mandate portion of the bill. The question to ask is whether the welfare state is inconsistent with American exceptionalism. What people are really objecting to in the context of health care is the idea of the federal government becoming involved in another welfare program of this magnitude. There are two primary objections: 1.) Rugged individualism, and the ability to make your own choices, and 2.) Mistrust of government, and a lack of faith in their ability to make the right choices for everyone.
The idea of "rugged individualism", no question, is one of the sources of the greater optimism present in the United States than in other countries. Society is much more integrated in the world today, and this has made everything so much more complex. It's not clear in global markets that the success of rugged American individualists benefits the country as much as it used to.
The narrative of distrust in government also made sense to Professor Marshall, who originally hails from the "Live free or die" state of New Hampshire, and said there was no question that the government is too big. The question is where to cut down on the government. This distrust is healthy, but the fact is that the only entity that can stand up to the excesses of large corporate power is the federal government, and the danger of cutting the federal government too drastically would only leave private power, and there is a similar distrust of private power in this country.
Regarding health care, one of the reasons for the state of affairs in Europe is the lack of social mobility. In recent years we have seen this in the United States, as we have become more of a society of classes. Health care is unique because it is so essential to freedom of opportunity, and it is the key to upward mobility. Health care is such a uniquely personal and powerful issue, causing great financial and personal difficulties. At least eliminating the barriers that are outside of one's own control, like preexisting health conditions.
RESPONSE: Professor Rabkin addressed the health care debate by admitting that the federal government might have power to tax everyone and create federal clinics, but that's not what's happening in this case. The federal government has never extended its right to regulate commerce to a complete lack of activity, creating a completely unlimited regulatory power. There is something bizarre about saying the states can limit people's choices to in-state insurance providers, which goes back on Supreme Court decisions regarding substantive due process. There are other options and other ways to regulate and change the health care system.
Judge Kavanaugh questioned how, philosophically, taxing someone is different from telling them to purchase something. In response, Professor Rabkin spoke of the need for an actual thing to tax, and the taxes need to be able to be avoided somehow, which is not the case here. This bill runs the risk of political subterfuge that cloaks the real objective and goal of the government in enacting this bill. Professor Marshall added that it is the question of individualism and distrust of government that would prevent health care, not the Constitution, since it doesn't seem there's a good argument that the Constitution does that. Health care is a political question. He expanded on this by saying that we're not talking about governmental power, we're talking about constitutional culture. We believe in this country in fighting wars for other people's freedoms. The fact that we have conflicting narratives about individualism and the welfare state in our culture is just a function of how our culture works.
Judge Kavanaugh also asked about the role of the courts in enforcing limits on the power of the other branches, and how cognizant they should be of not exceeding limits on their power. To Professor Marshall's assertion that the courts should decide a case where Congress is exceeding an enumerated power, Professor Rabkin seized the chance to return to the health care debate, and remark that courts have been interpreting the Commerce Clause since Gibbons v. Ogden, so this is not new judicial activism. Also, he offered comfort in the fact that the constitutional culture and beliefs of the country are much more complex than whatever may be expressed by a majority of the justices sitting on the Supreme Court.
Judge Kavanaugh's next question revolved around distrust of government, if it was getting worse, and how we can fix it. Professor Marshall said that distrust in government is a good thing, especially when its bipartisan. The problem is that it currently is so partisan in nature that parties don't have to work with each other anymore, and this is a problem. Professor Rao added that one of the most unique things about our country is that, along with our distrust in government, we believe we have an ability to change our government and prevent it from doing things we don't like.
To a very interesting question about the role that philanthropy plays as a part of American exceptionalism, and whether Americans can take care of our own people through philanthropy, there were glimpses into the competing ideologies of the panelists. Professor Rao said that philanthropy is more likely to flourish with smaller government and less taxes, and Professor Rabkin mentioned that there's great honor in taking care of your community. There is a role for the government, but Americans do have a history and tradition of giving, and this is partially lost if this is left to the government. Professor Marshall pointed out that an issue arises when some communities are simply unable to have the monetary base to provide for their own people, but acknowledged that philanthropy is a major part of who we are as a nation.
Judge Kavanaugh asked whether, if all 50 states enacted their own version of the health care bill, would there still be objections? Professor Rabkin seemed hesitant, but said he would object much less. He said it's helpful to have constitutional norms to reassure people that things will never tip too far to one side to the other. It makes a difference how the end sought to be achieved by a piece of legislation are put into place, and whether it's the federal government or the states.
In keeping with the tenor of the entire panel, which Professor Barnett correctly identified as returning over and over to a conversation about the health care legislation, many of the questions related to the Patient Protection and Affordable Care Act. One question was whether, since health is intrinsic, we ultimately take part in the healthcare market and do affect the economy, and these costs get passed on to the taxpayer, and how this affects the argument. Professor Rabkin acknowledged that health care is dysfunctional, there's no doubt, but there are two things: 1.) People would have been much more receptive to crisis or accident insurance instead. Part of the negative reaction comes from the comprehensive nature of what the mandate requires. 2.) The government has also not been completely honest about the bill, for example, people who already have insurance were told they could keep the insurance they have, but this is not totally accurate.
In response to how the argument squares with the commerce clause precedent, Lopez and Morrison excepted, and the lower court decisions that have come out on the case so far, Professor Marshall said that he thinks the lower court decision by Judges Hudson and Vinson are wrong, because not purchasing health insurance is not inactivity, it's self-insurance. Professor Rabkin revisited his point that this is unprecedented expansion of the power of Congress under the Commerce Clause. Judge Kavanaugh inquired next about the relation of the necessary and proper clause, and Professor Rabkin insisted that even Alexander Hamilton said that the necessary and proper clause had meaning as a limitation on federal power. It must be both necessary and proper, and proper in the sense of implementing the actual power it's claiming to be connected to. The Necessary and Proper Clause is not a blank check for Congress. The last question was whether the healthcare cases would lead to Wickard being overturned, to which Professor Rabkin replied that no, the challenge is framed in such a way that it's not required that you find that. The line is activity/nonactivity, and the Court would likely be very hesitant to overturn such an old precedent even if the challenge was framed in that way.