Wednesday, December 29, 2010

Danger, Danger, Ad Hominem!

I dislike ad hominems. I think I have a bias toward believing that there is such a thing as "truth," or that things are objectively knowable. I admit that our own position--defined by our class, gender, sexual orientation, etc.--conditions how we see things, that it may be impossible to escape fully from this conditioned perception, and that language is not merely or simply a reflection of the way things are (the signifiers and signifieds never completely correspond, and there are connotations intermixed galore that befuddle any thing that can be called a "meaning"). But I do think what passes for logic and objectivity is the best we have for discussion beyond merely asserting what amounts to "I'm right; you're wrong" slogans. Criticizing others for their motivations or their (usually only alleged) hypocrisy is a step in the sloganeering direction.

All this is a prelude to saying that I don't like ad hominems, but I am about to indulge in one anyway. Specifically, I am referring to the tone adopted by some critics of the health insurance reform when they argue that it is unconstitutional. Primarily they focus on the mandate, but there are other elements of the reform that might be unconstitutional as well.

The "some critics" I refer to are those at the Volokh Conspiracy--primarily Messrs. Adler, Barnett, and Somin--who have advanced numerous and quite compelling arguments against the law's constitutionality, primarily focusing on the mandate. When I say compelling, I mean their arguments make sense and might be right, whether one is talking about "constitutionality" in the pragmatic sense (will the Supreme Court uphold the law?) or in the meta-sense (does the law conform to an honest and consist reading of the constitution, whatever such a reading may be?). I am not fully convinced by their arguments (for example, the mandate is hard to reconcile with any provision of the constitution, but it seems to me to be more a regulation of commerce than the school-zone-gun-ban struck down in Lopez v. U.S.; and the question, for me, focuses on whether the mandate is a "proper" regulation, not whether it is a regulation per se, which I think is the point that Mr. Kerr makes in his posts on that cite, which are pretty much the only posts there that argue that the mandate is constitutional, at least in the pragmatic sense).

I find it hard to argue against the anti-health insurance reform arguments: I am not a legal scholar; I find it hard to settle on one (or even several loosely compatible) mode(s) of constitutional interpretation; and by any measure, their arguments make a certain amount of sense to me. To take their arguments at face value--and there is really not much other way to take them--they are simply just intellectual arguments about an important issue and are part of the larger debate of ideas that represents the best of what the internet promises to provide.

But (and now, the ad hominem) they seem to take so much joy in the prospect that the law might be struck down. For all I know, at least some of them are personally interested in the ban against pre-existing condition discrimination or against lifetime caps on coverage (two provisions of the law that might very well be struck down, too, if the mandate is declared unconstitutional). But not knowing them, all I can see--or that I allow myself to see--is that they're professors, most of whom have tenure, at prestigious universities where they presumably have (1) good or at least serviceable health insurance and (2) a good enough salary to make up for any deficiencies in their health insurance coverage. Their arguments seem to be an intellectual exercise of the same sort that 17th-century French scholars might engage in when they discuss the tension between amour-devoir and amour-passion. But these Volokh scholars are cited (sometimes) in judicial opinions, and some of them volunteer their energies to write amicus curiae briefs to help overturn the law.

I would not like to make it a requirement for debate on the constitutionality of legislation (because at base, it's irrelevant to the exact constitutional issues at play), but I would greatly appreciate it if these authors wrote with more of a spirit of humility, with a realization that this law, for all its faults (and not all the faults are constitutional, some of the faults may even lead to people having worse health care and for all I know the very people it's designed to help might be negatively affected), is an attempt to provide people with that which they (the authors) already enjoy almost as a matter of course. They might be right that the law is unconstitutional, and it might even be harmful to boot. And maybe it is indeed their solemn duty as "truth-seekers" to do what they can to speed the law to its demise, but sometimes it's just hard to seem them enjoy it so much.

C. S. Lewis once wrote that one measure of whether you are guilty of pride is the degree to which pride among others bothers you. In that sense, I am guilty of the same lack of humility I am accusing those Volokh authors of, and since I am engaging in ad hominems, I might as well acknowledge the log in my own eye even if I do nothing to take it out.

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