Health care and justice: Reply to Sasseen

Your understanding of the health care debate is truly comprehensive and thoughtful. We must always be concerned with both individual rights and the common good. You have shown the way to deal with the present crisis in a way that is consistent with the Constitution and distributive justice. I do wish to make a few points. First, whatever the requirements of the common good, the constitutional question is crucial. That is, we are a people in virtue of the Constitution, which has formed our habits and shaped our character. These have contributed mightily to a market economy which not only distributes goods and services more efficiently and more abundantly than any other society, but has aroused expectations and even enriched and thereby empowered government agencies. We now desire universal health care because we have gotten closer to it than would have been possible in the market economy's absence. We are enduring the crisis, if not the revolution, of rising expectations.

Socialists can only dream of redistributing the wealth in the presence of the hated capitalistic system that generates massive wealth to redistribute. The socialists' quarrel with capitalism is not over its productive capacity, which even Marx more than acknowledges in the Communist Manifesto, but over its alleged failure to distribute the profits fairly. We need to be sure that, in dealing with the present difficulties, we do not "kill the goose that laid the golden eggs." That may sound trite, but we are talking about preserving our constitutional system that has brought us so many economic as well as political and social benefits.

The fact that private health insurance covers so much more than homeowners' or automobile insurance indicates just how much our expectations have been aroused. Home and auto insurance covers calamities beyond the normal or "daily recurrent needs of the household." Health insurance seeks to cover practically everything related to health, including routine office visits. More than this, the government, through Medicare and Medicaid, does much the same. The result is that most of us make health care decisions on the expectation that someone else will pay--at least directly--for them (even if we pay in the end through premiums or taxes).

We are acting less like self governing citizens of a free republic than like wards of the corporate and bureaucratic state, however benevolent. Proposals to micromanage this already socially generous system or even to replace it with a government bureaucracy threaten the constitutional order which made this generous health care financing possible. This restraint takes the form of many citizens' manifest preference for practically anything but what Democrats are now proposing, which is to scrap the free market in health altogether. Our regime made us what we are, including our generous and advanced health care.

My second point concerns the dynamics of democracy. Our constitution was established to temper and moderate the demos as much as possible, consistent with the equality and liberty sought by our people, and the authority of the majority to make public policy. While it is certainly true that democracy, in some sense, always threatens our delicate constitutional order, it is also true that in the public mind (perhaps not in the "theoretic politician's" mind) our country is not merely a democracy.  Citizens cherish constitutional restraints and protections no less. I think it remains rhetorically effective, as well as true, to appeal to the Constitution as the source of our political prosperity and not merely to defer to majority rule or to acquiese in its ultimate triumph over constitutional restraints.

The Republican party is the institutional vehicle for keeping us true to our national heritage, and it is currently doing as good a job of defending us as can be expected under the circumstances. The Democratic party, or what its founders called the Democracy, is the enemy of constitutionalism. To the extent that we Republicans make that case, we make the case against unrestrained democracy. The rule of law includes a healthy and free marketplace and not just the formal laws that govern it (not to mention the infinitude of bureaucratic rules that burden it).  That is the meaning, I believe, of your distinction between regulating commerce and managing it.

Finally, however much Hobbes and Locke have in common on the state of nature and the state of civil society, their starting and ending points differ. Because the state of nature for Hobbes is "solitary, poor, nasty, brutish and short," he opts for a monarchy over a democracy to govern it. He does leave the door open in theory to a democracy, but few readers of Hobbes believe that he has high hopes for it. On the other hand, for Locke the state of nature is "inconvenient," with all sorts of unresolvable disputes that require a settled, known law to adjudicate them. His preference for democracy is not only not theoretical but explicit, and the king is reduced to a mere executive with some but not all of the monarchical powers. In short, warlike mankind needs a monarch, according to Hobbes, whereas squabbling mankind requires a large element of self government through democratic institutions, according to Locke.

Locke, if he does not prescribe duties at least makes it far more likely that men will freely assume them because they are free to accumulate goods and therefore more able to provide for themselves and others, and even to support a government without being excessively burdened. This is another way of saying that the limited government and market economy that Locke did so much to foster satisfies the demands of the common good very well indeed.

We run the risk of "throwing out the baby with the bath water." Preserving our constitutional system is the key to maintaining our public health.

Whose side is Obama on?

What do you get when you cross a leftist presidential administration with a modern media complex intent on furthering its politically-correct vision of America? You get lots of incomprehensible, illogical stupidity.

But, as Charles Krauthammer recently wrote, much of this is not benign stupidity. Much of it is downright dangerous. Like making a decision to close Guantanamo for no good reason -- and without an alternative place to put many of the most dangerous terrorists in the world. Or choosing to re-investigate the CIA for interrogations that were legally sanctioned by the Justice Department at the time they were carried out. Or creating a new and chilling environment that allows a radical Islamist at Fort Hood to contact Al Qaeda and make threatening presentations to other Army doctors without meaningful response. These nonsensical moves -- all in the name of political correctness and left-wing politics -- have already killed people.

How many more will die in the future?

Sadly, I believe it may be many. Now Attorney General Eric Holder has made the incomprehensible decision to try Khalid Sheikh Mohammed and the four other al Qaeda planners of 9/11 in a civilian court in lower Manhattan -- near the very site where they perpetrated their act of war against America. Holder's decision came at the same time that he also ruled that the detainee responsible for the USS Cole bombing would face a military commission instead of a civilian trial. If it is good for the Cole bomber, why isn't it good enough for the perpetrators of 9/11?

And herein is the main issue: Obama and Holder don't see the 9/11 attack as an act of war. This reflects the Administration's belief that the kind of terrorism that led to the attacks on the World Trade Center and the Pentagon were essentially law enforcement issues, and should be handled in the normal system of justice that is available to every American -- and with all the rights and protections that go along with it. This is grist, of course, for the ACLU and other left-wing interest groups who want to see the U.S. cease and desist its aggressive tactics against the poor Islamic victims of U.S. imperialism. Holder has just given them a big fat bone: the final death blow to the "war on terror".

As the Wall Street Journal opines today:

Please spare us talk of the "rule of law." If that was the primary consideration, the U.S. already has a judicial process in place. The current special military tribunals were created by the 2006 Military Commissions Act, which was adopted with bipartisan Congressional support after the Supreme Court's Hamdan decision obliged the executive and legislative branches to approve a detailed plan to prosecute the illegal "enemy combatants" captured since 9/11.

Contrary to liberal myth, military tribunals aren't a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday's decision, the tribunals at Gitmo had earned a reputation for fairness and independence.

Oh, if only it were 1942 again -- when Obama's hero, Franklin Roosevelt, was able to move against America's enemies without the glare of the media covering every move. Roosevelt ordered Attorney General Biddle to carry out a swift form of justice at a time when America was at war -- a simple, effective process that protected America. The Germans were caught, tried and hung. No hand-wringing about their treatment as detainees. We understood a central fact: they were the enemy.

So Eric Holder, with the approval of President Obama, has chosen to return the 9/11 terrorists to the site of their crime, and with all the pomp and circumstance that will go with a show trial. F. Lee Bailey might even come out of retirement for this one. Can you imagine the spectacle? The opportunity for a legion of fame-seeking defense attorneys to gum up the works on this for years -- all the while parading this mass murderer in and out of court on a daily basis? How long before the sympathy factor sets in for this poor Muslim fundamentalist who was abused by his father and grew up in a world of American imperialist oppression?

The greater danger, of course, is the chance that Khalid Sheikh Mohammed and his cohorts are set free on procedural grounds for lack of evidence -- or because the defense lawyers put America and its interrogation techniques on trial.

This is a very real possibility -- and one I suspect that the Obama Administration understands well. So why would they take the risk? Is it because it is an opportunity to put a final nail in the coffin of the Bush Administration's "war on terror"? Wouldn't an acquittal on the basis of water-boarding be the ultimate victory for the anti-war left?

And the Journal concludes:

One certain outcome is that an open civilian trial will provide valuable information to terrorists across the world about American methods and intelligence. Precisely because so much other evidence may not be admissable, prosecutors may have to reveal genuine secrets to get a conviction. Osama bin Laden learned a lot from the 1995 prosecution in New York of the "blind cleric" Sheik Omar Abdel Rahman for the first World Trade Center attack. His main tip was that the U.S. considered bin Laden a terrorist co-conspirator, leading him to abandon his hideout in Sudan for Afghanistan.

Terrorists also love a big stage, and none come bigger than New York. Zacarias Moussaoui, the so-called 20th hijacker, made his civilian trial a spectacle. Not even the best judge can entirely stop KSM and others from doing the same. And Mr. Holder has invited grave and needless security risks by tempting jihadists the world over to strike Manhattan while the trial is in session.

Just whose side is Obama on?