The foolish and infuriating thing about the American political system is that it is reduced to debating 21st-century problems in an 18th-century vocabulary that has been only modestly modified since then.
The republic was founded by 18th-century minds working with eighteenth-century materials, including eighteenth-century terms and concepts, themselves distilled from the work of earlier minds. They did not yet have 19th- or 20th-century experiences. This is not to find them guilty of anything but human limitation. With the very major exception of slavery, they weren’t especially sinful or stupid. (Of course, it took a bloody civil war to correct that very major exception, as a result of which a series of Constitutional amendments were passed, one of which severely limited the powers of the states forever after—a 19th-century recognition of what was already evident to part of the country in 1789, though not nearly enough.)
Those gentlemen of the late 19th century couldn’t see around corners. You need not be a pure historicist—someone who thinks that all thinking is stamped with a sell-by date, after which it sours— to wonder if their concepts are adequate to a world where the means of life, liberty, and the pursuit of happiness have so considerably changed. Surely those who have founded republics since the late eighteenth century have, in a number of crucial respects, not thought so. It’s been rightly pointed out, for example, that subsequently founded republics have not imitated America’s strong presidency. They’ve gone parliamentary. They’ve done so for reasons that seemed good and sufficient for them in the light of their distinct values and what they learned from experiences accessible to them.
The Constitution was written by men (not women) who decided that the Articles of Confederation, which had been the terms of their federation, were too weak to create a national government that would address their problems. They had determined to separate from Britain a generation earlier partly because they felt unrepresented by the British system and partly because they had ideals (many of them British in origin) that required, they thought, a revolutionary reconception of government. Following the success of their revolution, they experimented with a loose affiliation of state governments only to find them faulty. There were, they decided, taxes that needed to be levied “to provide for the general welfare.” There needed to be legislative and executive bodies empowered with the legitimate right to collect them. There we had it—American practicality in action. Yes We Could.
Health insurance did not exist in 1789. (Neither did giant concentrations of capital, convincing later governments that hitherto unimagined forms of regulation would be a good idea. But I digress.) The Constitution did not anticipate the cost of medical care, nor could it have done so, for whatever the genius of James Madison and the rest of his crowd, they did not imagine X-rays, abdominal surgery, CT scans, heart transplants, hip implants, chemotherapy, or antiretroviral drugs. Medicine in their time wasn’t good for much, though it was cheap. There were many things that could bankrupt a person or a family—which was why overwhelming debt inspired the first of the new nation’s rebellions—but paying for doctors was not one of them. So far as medical costs were concerned, there was no free rider problem because riding for everyone was cheap—unhelpful, in the main, but largely affordable.
Before then, a tax was a financial imposition by governments on their subjects. Under monarchies and tyrannies, taxes were measures imposed to bulk up the government at popular expense. Since the people played no part in choosing the government, they tended to experience taxes as unjustified exactions. But insofar as later governments governed with the consent of the governed, the ground of that objection fell away. It became routine for governments to require that citizens pay for the services that their government determined to be necessary for the general welfare. As circumstances changed, different governments made different judgments as to what those services ought to be. There were also, of course, debates about who should be required to pay how much. There continue to be all such debates. But the Constitution provided a means to answer those questions—republican means.
In the light of the fact that the governors of the republic, an elected president and Congress, after decades of debate, found it wrong, and correctable, that some 15 percent of the country should lack health insurance and should therefore lack the ability to participate in the “general welfare” afforded by modern medicine—that they should find so much of their well-being, in other words, hostage to fortune—it behooves us to take a step back and ask why the republic should care whether nine men and women find one necessary provision for the health care law to be a tax or a penalty, or to find justification for universal health insurance in a constitutional provision that has been upheld by previous generations of other groups of nine supreme justices.
So it’s alternately disheartening, infuriating, and crazy-making to behold intelligent people trapped in this superannuated contraption, the American political system, thrashing around trying to come to grips with a law that, among other things, requires citizens to acquire insurance.
Everyone dies. Almost everyone resists dying. A primary means by which people resist dying is by arranging for health care they can afford. Since this is expensive, the general welfare benefits from pooling risks. We call this insurance. It is now understood that paying for it requires universal participation, or something close to it. (Ultimately, the gap between universal and almost-universal needs to be closed, but that’s another story.)
Can we stop playing label games now?
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