The Car and Uncle Jim

The family needs a new car. The old one is increasingly unreliable. It eats gas, and costs a ton in maintenance. What’s worse, if you drive it very far, it eventually overheats, stranding you for hours out in who knows where. Everyone agrees the car isn’t working anymore. It was made back in the 1930s, lacks modern safety systems, and doesn’t even resemble a contemporary automobile. They can’t keep driving it. But that’s where the agreement ends.

The obvious choice is just to get a modern car like everyone else drives. They know it will work. They can estimate its up-front and recurring costs. It will get the job done. The problem, you see, is Uncle Jim. Jim is prone to reaching rigid conclusions on any issue he feels is an important one but does not see the point in becoming very well informed before doing so. And Jim is adamantly opposed to the whole “modern car” idea. While he agrees the existing car has some problems, his solutions are not forthcoming. When pressed, he says vague things about letting the car be itself and waxes about the “freedom of the open road.” Jim seems serious, and this is all it takes to make some family members wary of doing anything rash.

To keep the family peace, Jill suggests buying a quirky car that has many modern features but retains the look and feel of the old car. The new one would have seat belts, would be unlikely to overheat, and would at least get somewhat better mileage while perhaps reducing major maintenance expenses. Retaining that old look and feel would come at a price, however, relative to doing the obvious thing and buying a boring car. Parts are harder to find, and so cost more, and there’s no guarantee that suppliers and mechanics will be plentiful enough to have meaningful choices (and thus inexpensive ones). It’s likely this quirky car will have … well some quirks. And so they can expect to be back in the shop a few times early on to fix unexpected problems and to tune things up. But at least it’s safer, and Grandma (who is the one who often needs to drive long distances) won’t be stranded anymore.

Jim is livid (despite the fact that he had suggested getting this very car a decade ago in an attempt to scuttle the purchase of different car he didn’t like). Instead of pointing out some very real concerns and suggesting alternatives, Jim argues that buying this car would be an evil act — he doesn’t explain the moral valence of a decision about buying a car — and is really a clever attempt by Jill to wrest control of the family. “Why are you attacking our beloved car? The one that brought the children home from the hospital. The one that took all of us to our proms. I’ve never been stranded before, and people can decide for themselves if they want to risk it. This new car is just a ruse for you to drive us all around and only go where you want us to go.” When asked directly what he would do instead, Jim says, “Not THIS! How about some common-sense steps to improve our car-driving experience. Thats what I’d do.”

With no reasonable alternatives and laboring under a perception that the family’s narrow support for getting a new car at all would evaporate if the choice were made to try to get a more ordinary car, the family buys the quirky car.

Predictably, the car isn’t perfect. When the tail-light malfunctioned, Jim pronounced the whole new car idea flawed from inception, despite the fact that the old car had no tail-lights at all. Jim tries again and again to convince the family to take it back and retrieve the old car from the junkyard. All the while the family is in the middle of several other important crises, and it is perfectly obvious that whatever its flaws, the new car is no worse than the old one. When Aunt Cindy announced she was expecting her third child, people asked how she was doing, if she’d thought of a name, and when she was due. Jim looked at her and said, “If we don’t take that car back, we’re all going to die.” To a few of the crazier relatives, he suggested that the pregnancy was a smoke-screen to distract attention from the car crisis.

Every Sunday morning — no one knows why — Jim is still invited to deliver the dinner blessing, and every time he says the same crazy things. But boy is he entertaining.

The Freedom to Kill and Maim

Truth is that like a lot of people I’m having a lot of trouble concentrating on much else since the tragic shooting in Newtown on Friday. Sadness, anger, wishing, regretting. I keep thinking about my own kids, the schools they’ve attended, the teachers they’ve had. I’m sure I’m not the only one who is haunted by imagined versions of the horrible instants when so many children and heroic adults were brutally murdered. It’s so far beyond everyday comprehension, the product of a will so foreign to any humanity I can understand — and the consequences so unbelievably devastating for the families.

These spectacular mass-shootings are but one of the costs of guns in the United States. Over 30,000 deaths per year, almost exactly the same number as car deaths (which number I try to keep in mind as a sort of risk and magnitude benchmark), result from guns. Some of these deaths, obviously, would still occur if there were no guns. But just as surely, some would not. As Atrios pointed out a couple of weeks before Newtown but after yet another incident of gun violence (everything now occurs either just before or just after some mass shooting): “It’s really easy to kill somebody with a gun. It’s pretty hard otherwise, even if you really want to.”

So what should we do? What’s amazing to watch is the recapitulation of the oldest and most fundamental of political debates in a context in which it is absurd: religious faith in markets vs. a belief that collective regulation can sometimes be efficacious. Ideological libertarianism vs. pragmatic balancing of individualism and collectivism. There are those who suggest, without evidence in support and despite evidence to the contrary, that no regulations can possibly reduce the costs of gun violence. This is compounded by other logical errors. (For example, while it’s true that guns don’t kill people on their own, it’s also true that people don’t shoot bullets from their fingertips. Nor is it particularly availing to the arm-everyone cause to argue that some violent killings would occur even without guns, that some people would still manage to acquire guns, or that we should also do more to combat mental health problems. On the last point, I’m delighted to see a national consensus apparently develop around the importance of at least some types of healthcare.)

Some are telling us that the problem is too much regulation. If everyone carried guns, no one would try this, and if they did, they’d be stopped by responsible gun owners. Teachers should carry guns, restaurant employees, churchgoers, everyone! It’s Mutual Assured Destruction for everyday life. The problem, we are told, is that well-meaning but misguided laws keep people from owning and carrying firearms, not that they permit it.

Whatever the merits of libertarian thinking in other kinds of social interaction (campaign finance, financial markets, seat belts, etc.), it strikes a dull chord in the market of death and destruction. Even if you believe, as I do not, that the solution to problems in all speech markets is more speech, or that the solution to healthcare market failures is no regulation, or that the financial markets collapsed because of too much rather than too little government oversight, it takes a special kind of Randian religiosity to think that the problem with violence in America is down to too little freedom to make, buy, sell, carry, and use guns.

I’m pretty sure I’m in the majority when I say I don’t want to live in a public in which everyone is armed, where everyone straps on an insta-kill machine before walking among their fellow citizens. A free market in violence would make me feel like a slave, not a free person. Freedom — the true freedom to develop our potential, to make and care for friends and family, and to create new things — is fostered by assumptions of trust in a community, not by individually and continuously planning to respond violently to the worst. I wonder at the psychological impact of a Mad Max kind of existence. In any event, I’m doubtful of its efficacy. You’ve surely seen the statistics being bandied about: owning and carrying a gun appears to increase your chances of a gun death and, even if assaulted, you’re more likely to be shot by a factor of over four if you’re carrying a gun.

However we decide to change after Newtown, my great hope is that it follows a rational process of sifting through evidence and committing to trying things that have a good chance of working to reduce dramatically the 30,000 gun deaths (not just those from spectacular mass shootings) and many more injuries that occur every single year. A ban for the sake of a ban isn’t that. But among other things that should be evaluated: serious limitations on guns and ammunition, not just cosmetic restrictions on scary-looking guns, better support for clinical services for the mentally ill, more funding for basic and clinical research into mental illness, and perhaps better and more numerous armed security at certain venues. (Perhaps we should more systematically provide, at least temporarily, support for some armed presence at schools, for example. It makes no sense that Al Qaeda and their sympathizers target airplanes when they could shut down cities with far less effort, like the DC snipers did. But they choose airplanes and so security resources go there. Maybe it’s the same here.) I’m even open, despite my deep reluctance to live in such a world, to being proved wrong about the desirability of arming more ordinary citizens.

To put it bluntly, to respond to the mass murder of first-grade students with unexamined ideological assumptions and without an open mind is immoral. Wrong. Wicked. For too long, ideologues have claimed the moral high ground of “family values.” No more. Morality demands you show concern and compassion in your approach to actual people, not just fealty to ancient texts, tax pledges, or partisan orthodoxy. Maybe pursuing that kind of morality is one way we can begin to change.

A Facebook Thread, the Day after the Newtown Tragedy

Original Poster (OP): Instead of praying just when there is a tragedy, why don’t you try praying every day. The world would be a much better place!! Also, guns are not the problem, sick and evil people are the problem. If someone wants to kill one person or many, they will find a way! A gun isn’t the only thing you can kill someone with!!

  • X: AMEN, [OP]. Well said! In fact, I’m going to share this.

  • Me: Yes, but it’s extremely hard to kill twenty people in a few minutes without a gun. Not saying that fact should necessarily lead us to regulate in any particular way. But we should at least acknowledge that guns make it easier to kill people. Each year, there are about 30,000 gun deaths (about the same as car deaths), with a little over half of those being suicides. As you point out, many of those would occur through other means in a world without guns. But maybe many wouldn’t. I think it’s important just to have an open mind - neither disposed to knee-jerk regulation nor to an assumption that guns themselves aren’t a problem. We’re all united in being sickened by this and other mass killings. I really think we could be united in pragmatically looking for ways to prevent tragedies like this one. That might include better mental health surveillance, better resources, better security, reduced press exposure, and, perhaps, regulations restricting access to weapons and ammunition that are peculiarly useful for mass killing. But our commitment to these things should not be ideological. If it works, let’s try it. If it doesn’t, let’s move on to another strategy. The truth is that we don’t yet know what mix of things will work - and assumptions either way are only that.

  • OP: Did the terrorist on 9/11 use guns, he could use a car, bomb etc. I could go on and on!! We have always had guns in our culture! The tragedies started happening when we took prayer out of schools, started being politically correct and stopped going to church and taking our children to church! Instead of complaining about guns, we all need to get on our knees and beg GOD to forgive us for taking him and his son Jesus Christ out of everything and realizing that GOD knows best NOT MAN!!

  • Y: You are awesome [OP]!!!!! Never lose that fighting spirit!!!!

  • Z: [OP] - I agree a million percent!!!! Thank you for your insightful post!!!! Those are my thoughts exactly…

  • Me: [OP], you’ve made a testable, empirical assertion about the causes of gun violence. As someone who puts solving the problem of crackpots killing scores of people every few months ahead of any particular ideology, I’m open to looking at the evidence for your assumption - but I’m doubtful that general religiosity has much to do with the maniacs who murder children. Frankly, I think a refusal to look at the evidence about what could save the lives of kindergartners is deeply immoral.

  • X: ….and some people just have A LOT of book sense but absolutely NO common sense!!!

  • OP: Mr. Turner, i think you lack alot of faith and for that I feel for you! I don’t really care what you think for I know GOD exist and that if America doesn’t start to realize what the “Real” problem is and go back to our faith and realize that Jesus Chris IS our Savior, our country will continue on the down spiral we are in and more tragedies will continue. I will keep you on my prayers and may The Lord have mercy on us all!!

  • Me: You have about as much evidence concerning my supposed lack of faith as you do for believing that if most people were Christian maniacs would stop murdering children. I guess I’m naive, but I honestly thought we could unite around practical solutions to mass killings.

  • OP: Like I said, I will pray for you!

  • Me: I just don’t see any conflict between Christianity (or any other religion) and also searching for earthly ways to stop the mass murder of children. I just can’t believe that’s a reason to pray for the salvation of my soul. Seriously, to do anything else strikes me as deeply, deeply immoral. Sorry to extend this thread, but I can’t honestly believe that we ultimately disagree that we ought to look at all our options to prevent mass shootings of elementary school students. But if we do, I’ll just leave it at that.

  • OP: When you take God out of places, such as schools, it leaves the door wide open for evil to enter. It is time for people to take responsibility for their actions and stop the blame game. That sick man pulled the trigger, the gun didn’t start shooting all by itself!

Viewer Mail

Normally my blog scribblings manage to attract literally fours of readers. I did have one post, attacking the idea of true love on the occasion of my wedding anniversary, that was passed around a fair bit. Not exactly viral, more like a topical rash. I use this forum to work out ideas in my head on all kinds of topics. I learned as a math student the difference between thinking you have a good idea and actually having a good idea. Writing down a proof can reveal that you’ve done nothing at all, whatever the sensation of reason and accomplishment you might have had in your head. And my one rule is that I just write what’s on my mind in no more than a couple of hours or so. A bit more than a scratch pad, quite a bit less rigorous than an academic article or book.

My latest post, a letter to my Republican friends, attracted quite a bit more attention than normal. It was passed around on Facebook and Twitter before attracting a lot of attention on It’s now been read by almost 25,000 people and still getting about 1,000 hits per hour. About half of my new readers hate it. Some took the effort to drop me a line:

Subject: Your Obama speech,…

Message: You sir are someone who is grossly drunk on donkey fluid…no RATIONAL person would truly believe your pile of utter BS on Obama would had been so great if it weren’t for those scumbags who voted against him in 2010. So clueless and naive.

Happily, Crimefighter, as he likes to be called, is not representative of the feedback I’ve gotten. The discussion on reddit has been very good, if highly critical. Take this comment, by masterwit, who took exception to my reference to pollster and political strategist Frank Luntz as one of the world’s most repulsive humans:

I do not care what party an individual may attach themselves to… but referring to the political opposition as repulsive humans is intellectually immature. Granted there are repulsive humans in this world, but this sort of dialect is not healthy in trying to persuade “a Republican”.

Terrible article regardless of one’s political view.

I think masterwit is correct. While I am not strategically trying to persuade anyone and therefore not bothered that my language might sabotage some political aims, it’s no way to talk about another person if interpreted naturally. Of course, I didn’t mean literally to denigrate Luntz as a human being. In a conversation with friends, of whatever political stripe, this reference would be accompanied with laughter and the unspoken humility that makes it possible to love and respect ideologically disparate friends. Luntz, in my view, is partly responsible for some of the more regrettable features of our politics. But when read by strangers, this bit of hyperbole stands on its own. And on its own it sucks.

From flashmedallion (and echoed in other form by colorlessgreenidea):

This article kind of undermines itself a little; the author talks about how he’s not interested in getting Republicans to vote against Democrats on account of policy… but he keeps getting sidetracked and bashing policies.

There are indeed two paragraphs of the post that focus on substantive policy differences. I included these because I do think there’s a connection between the rigidity of the procedural obstruction and the unyielding ideology the Republicans have practiced in the last few years. This article by Thomas Mann and Norman Ornstein makes that point far better than I could.

I also wanted to highlight that I have serious policy disagreements with the Republican leadership. Let’s not hide this. I’m not trying to tell Republicans that our political positions are close. But I made sure to add explicitly that I was offering no supporting argument in the post for any of my preferred policies. It might be that many readers will be turned off when I suggest it’s “inexplicable” to insist on immediate spending cuts in the middle of a demand-induced recession or that Republican foreign policy is “wild-eyed and unrealistic.” That’s ok. We don’t have to agree, and my goal is not to coax you to my position with soothing language. Rather, I’m saying we need to figure out how to govern effectively despite the fact that we vehemently disagree.

Pakyaro says I “lost [him or her] at ‘EVAR’” and Ganonderp_ says:

How the hell did he become a law professor? This reads like an editorial in a high school newspaper.

Look, I’m a total goofball. I admit it, and I encourage my students to challenge me by telling them that I say stupid things all the time. Anyway, I wasn’t hired as a teacher or scholar for my admittedly random blogging. Some people seem to like it, and some don’t. The point was to emphasize that while it’s shrill to suggest that this election involves the most important issues ever to confront our Republic, we do face a critical structural problem — at a time when we need to get things done. Maybe it was a goofy way to say it. If you want academicky sounding things, go download my papers here. No, really, please go there!

Perhaps predictably, a fair number of comments (many on reddit, one by email, and one over twitter) suggested I’d been too quick to reject the idea that a third party is a better solution than rewarding one of the two we have. (I’m beginning to think there may be an unusual concentration of Gary Johnson among the internetterati…. Joke. As a long-ago slashdot, digg, and usenet participant, I’d have been disappointed to find otherwise.) Yes, the paragraph in which I discuss this is hardly conclusive. @ariel_kirkwood on Twitter pointed me to this interesting article on score voting by Andrew Jenings, Clay Shentrup, and Warren D. Smith. On the reddit discussion, there are several good threads discussing third parties.

I just don’t have a well-formed opinion on the issue. I’m not at all opposed to altering the Constitution, which has many flaws. (See Sandy Levinson’s work for an example of what a fresh reconsideration of our Constitution might reveal.) My brief point, which is really all I can say at the moment, was that without constitutional amendment, norms are our best shot at preventing damaging obstruction as election strategy. Failing to achieve one’s goal, election, may cause a re-examination of strategy, unyielding obstruction. Absent more fundamental reforms, I think our best chance is electoral defeat of obstruction.

A few took issue with the premise that obstruction could even have been effective since the Democrats enjoyed a filibuster-proof majority. There’s not much to this claim, though. Despite a big election win in 2008, the Democrats managed sixty senators for only a couple of months following the extensive litigation to prevent the seating of Al Franken and before the death of Ted Kennedy. It also counts Arlen Specter and Joe Lieberman among the sixty. In any event, I’m not making an abstract argument but citing to what a number of Republicans have said the strategy was.

Finally, there are a number of people that I know I’ll never convince. That’s fine! We don’t have to agree. Come hang out with me at Two Story Coffeehouse here in Athens and we can debate and share some laughs. For example, funfsinn14 writes:

So vote for Obama because institutional gridlock is present? I like institutional gridlock, the less things the sociopaths in govt can get done the better.

I’m happy to have the election run honestly on those grounds. If you have a majority that desires to vote for gridlock, I’d be surprised. But I appreciate the forthrightness.

On the other side, I’ve been told that I should know this is an assymetrical fight, for reasons similar to what funfsinn14 said. If one party is basically fine with getting nothing done but the other is not, then only one will practice obstruction as an electoral strategy. Two responses. First, I agree this asymmetry exists, and I guess I appeal to my Republican friends’ sense of fairness more than fear. I’m optimistic enough to believe that if it were perfectly clear to everyone that one party had intentionally obstructed in order to run on accusations their opponents were not able to get anything done, then the public would soundly reject them at the polls. Second, though, even if it’s true that a Romney win would lead to the Democrats’ rolling over and compromising like they did during the W. Bush administration, I’m not sure this will continue. Eventually, the party will lose its taste for being bloodied. And the structural exploits that will be used to level the playing field will be at everyone’s expense.

That’s why my central points are: (a) the Republicans themselves have said that obstruction was the strategy to win election, (b) they are in fact running on accusations that Obama has been ineffective in passing things and getting bipartisan consensus on what he has passed, and (c) that strategy must lose.

Dear Republican Friends

Dear Republican Friends,

Look, we need to talk. We can’t keep going like this. No matter how much you dislike President Obama and no matter how much you disagree with his policies, you need to vote for him in November. I’m not saying you have to like it or that you can’t go back to voting even for extreme conservatives in the next election, but this election is different.

The problem is not that the issues involved in this cycle are THE MOST IMPORTANT ONES EVAR. No, they’re important, but many elections have involved similarly important issues. I think you’re wrong about taxes, spending, healthcare, foreign policy, the judiciary, and regulation. But I’m happy to keep disagreeing on these subjects in the normal course of our politics.

Here’s the thing: if Romney wins, it validates a strategy that, if adopted by my team too, will make America pretty much ungovernable. From the day Obama was inaugurated, the Republican strategy has been to refuse to cooperate on virtually every issue, to fight every piece of legislation, to block every nomination, and even to threaten to kill clearly needed legislation in the style of a hostage taker.

And when I say “from the day Obama was inaugurated,” I mean it literally. That night, at a strategy dinner organized by one of the world’s most repulsive humans, Frank Luntz, and attended by House and Senate Republican leaders, including Paul Ryan, key Republicans discussed the need to “challenge [the new administration] on every single bill.” Killing everything, running on a lack of progress to take back the House in the midterms and the White House in 2012, that was what mattered. Newt Gingrich told the assembled crowd: “You will remember this day. You’ll remember this as the day the seeds of 2012 were sown.”

One attendee, Texas rep Pete Sessions, explained shortly after this and after the House Republicans had unanimously voted against the stimulus bill:

Insurgency, we understand perhaps a little bit more because of the Taliban. And that is that they went about systematically understanding how to disrupt and change a person’s entire processes. And these Taliban — I’m not trying to say the Republican Party is the Taliban. No, that’s not what we’re saying. I’m saying an example of how you go about [sic] is to change a person from their messaging to their operations to their frontline message. And we need to understand that insurgency may be required when the other side, the House leadership, does not follow the same commands, which we entered the game with.

In 2010, Senator Mitch McConnell famously declared that his most important priority was to ensure that President Obama would be a one-term president. Supposed fact checkers have pointed out that, in the context of that interview, McConnell perhaps showed more flexibility. But in the context of everything else we know, it could not be clearer that winning the White House in 2012 using a strategy of unyielding obstruction was precisely his top priority. That mindless, nihilistic obstruction has been a means to that end is obvious not only from the record but also from what other senators have said. We know this both from off-the-record comments and also from on-the-record statements. Here’s former Senator George Voinovich:

If he was for it, we had to be against it. … . He wanted everyone to hold the fort. All he cared about was making sure Obama could never have a clean victory.

Vice President Biden claims he was told by several Republican Senators, before taking office, “For the next two years, we can’t let you succeed in anything. That’s our ticket to coming back.” You may generally disbelieve Biden, but the gist of these conversations was confirmed by Republican Senators Bob Bennett and Arlen Specter. (The source here is the same link as above, an article by Greg Sargent reporting on the contents of Michael Grunwald’s book, The New New Deal.)

And obstruct they have. I won’t recite the list of bills and appointments Republicans have blocked. Loud, obnoxious, and illogical opposition in the House is paired with efficacious holds and filibustering in the Senate. Take a look at this chart showing that the number of filibusters more than doubled when Democrats took control of the Senate. It is to the point where absolutely nothing gets through the Senate without sixty votes, which means Republicans can and, more importantly and tragically, do veto everything. The Democrats did indeed maintain a sixty-vote majority for a brief period, counting two independents who normally voted with them, but any sensible person quickly understands that’s not enough, given the way that a single Democratic vote could be easily peeled off. (Obstruction could provide the appearance of division that would be used as a bludgeon in races in vulnerable districts.)

This strategy combines toxically with a party ideology that moderates of all stripes have observed growing increasingly inflexible, increasingly unmoored from the facts and pragmatism, and ever more fond of insane litmus tests like Grover Norquist’s tax pledge (guaranteeing in advance that no matter what happens candidates will not vote for any income tax increase of any kind).

But, my fellow American, I’m not asking you to vote against your party because of its policy choices. I do find inexplicable their insistence on dramatically cutting spending in the wake of a demand-induced recession despite record low interest rates and no real inflation, their dogged determination to maintain historically low levels of taxation on the richest Americans, their obsession with eliminating regulations, their preoccupation with controlling female sexuality, and their attachment to wild-eyed, unrealistic foreign policies. I’m not giving you any arguments on those here, however. But pointing out just how extreme your party has become goes some way toward explaining why they’d be willing to engage in unprecedented levels of hypocrisy (fully aware how hyperbolic that can sound when discussing political bodies) to defeat a president:

The results can border on the absurd: In early 2009, several of the eight Republican co-sponsors of a bipartisan health-care reform plan dropped their support; by early 2010, the others had turned on their own proposal so that there would be zero GOP backing for any bill that came within a mile of Obama’s reform initiative. As one co-sponsor, Sen. Lamar Alexander (R-Tenn.), told The Washington Post’s Ezra Klein: “I liked it because it was bipartisan. I wouldn’t have voted for it.”

And seven Republican co-sponsors of a Senate resolution to create a debt-reduction panel voted in January 2010 against their own resolution, solely to keep it from getting to the 60-vote threshold Republicans demanded and thus denying the president a seeming victory.

Now stick with me. It’s perfectly fine for the opposition robustly to fight the President’s agenda. Especially after losing a high profile election, it’s natural to get together, to strategize about how to protect what matters most in your own agenda, even to make plans to win the next election. And normal politicking involves caricaturing your opponents, tough negotiations, and rough rhetoric. Our politics, though, have gone well past this.

The President has compromised endlessly only to attract zero Republican votes and face, again no matter how compromising, charges that he was partisan and uncompromising. If we liberals had our way, we’d have single-payer healthcare, an adequate stimulus (twice as big as what was done and as all reasonable economists indicated was necessary - and as interest rates are virtually begging us to undertake), bankruptcy cramdown, no prison in Guantanamo, much higher marginal rates on top earners, and the list goes on. But we never expected to get our way on everything. People disagree about things, especially important things. That’s fine. And it’s why the president’s healthcare plan took as its model a conservative proposal that had managed to unite the parties in the past.

The immediate and urgent problem here is not what Republicans believe but the two-fold strategy they have chosen to pursue: (1) Make sure nothing gets done. (2) Run a campaign criticizing President Obama for not getting anything done.

This can’t be allowed to work, and I think this is a point on which we both can agree. This is so important that I want to say it again: This can’t be allowed to work. Imagine your party’s candidate does win. What is my party supposed to do? If we adopt your strategy, Romney will fail. Winning an election does not mean you should be able to get your way without compromise. But at the very least everyone in our system should be accountable. You don’t get to obstruct everything and then run a campaign accusing your opponent of failing to reach across the aisle to get things done. If you think that’s an acceptable strategy, then ask yourself if you want my party to adopt it.

Wait a minute, some of my independent-minded friends may say! The problem here is the two-party system. We just need a viable third party. Nonsense, unless you’re plan is (a) to replace the winner-take-all, first-past-the-post system we have, with, say, a parliamentary system or (b) to destroy and remake one of the two parties you generally favor. Believing that a three party system is viable in the presidential context under our current election rules is like believing the moon is made out of cheese. I’m quite open to thinking about (a) — though not at all sure how realistic such a radical change is. And on (b), well if it leads to the remaking of a more pragmatically minded conservative party, I’m all for it. But it’s a method for realigning, maybe even renaming!, the two parties, not for stably adding a third.

I understand the stakes here. The economy is likely to improve over the coming years (at least in the short term), regardless of who is elected. If Obama is re-elected, he will probably go down as a great president, for many reasons. If not, Romney will get credit for rescuing the economy. But more important than any particular policy is our continued ability to make policy at all. The model of governance and campaigning demonstrated by the Republican party over the last four years, if adopted by everyone, would be a suicide pact. Let’s not sign it.

This Bitter Earth

Last night, Christopher Stevens, the U.S. ambassador to Libya, and three embassy staff members were killed in a senseless attack. An idiot in the U.S. made a ridiculous film disparaging all of Islam. And some other idiots in Libya felt the proper response was to attack and murder people who disagree with said idiot but who happen to be Americans.

The human mind is capable of such compassion, such creativity, and perseverance. It can be goofy, selfish, or overly proud. But it need not be filled with hate. We’re here for such a brief time, in the midst of uncertainty over just about everything but our own eventual demise. Whatever life is about, and however certain you are that you think you have the answer, it has to be about more than rage.

My mind, at times like these, invariably goes to the most moving music I know, a mash-up of two wonderful compositions, songs that could hardly be more different but which combine in a way that transcends them both.

This bitter earth,
well, what fruit it bears,
this bitter earth?

And if my life is like the dust
that hides the glow of a rose,
then what good am I?
Heaven only knows.

This bitter earth,
yes, can be so cold.
Today you are young.
Too soon you’re old.

But while a voice within me cries,
I’m sure someone may answer my call.
And this bitter earth,
may not be so bitter after all.

This bitter earth,
Lord, this bitter earth.
What good is love
that no one shares?

And if my life is like the dust
that hides the glow of a rose,
then what good am I?
Heaven only knows.

The Men and Women of ...

Why do we so often refer to members of the military as our “men and women in uniform”? It’s not the “uniform” part that has me thinking about this. We do the same with many other institutions — the “men and women of TransExpress Airlines” or the “talented men and women of Central State University.” For that matter, why do we address a kindergarten class as “boys and girls”? I’m not looking to suggest that each utterance of such phrases reveals the latent gender biases of the speaker. I only want to ask why. In doing so, I’ve been led to consider the descriptive power of terms of sexual identification, beliefs that men and women are essentially different and yet inseparable types of beings, and how attempts to be inclusive can also reinforce the distinction among groups.

But maybe you think it’s ridiculous even to question this turn of phrase. It’s just a colorful way of saying “people,” right? To see how odd gendered phrasing is, in the abstract, try it out on other social groups: “our blacks and whites in uniform,” “the Latinos and non-Latinos of Widget World Industries.” No one talks that way. The phrasing is offensive for what we would think it reveals about the speaker — that he or she found the classification into social groups somehow relevant, so relevant as to be the fundamental way to sort the employees of an entire organization. And yet the audience understands that the distinction drawn is not at all relevant in the context used. The speaker, therefore, must be resorting to faulty stereotypes. Shame on him … or her.

But even where a classification is not offensive, it just seems bizarre when it’s not directly related to a functional categorization within the organization. “The black-haired, blondes, and brown-haired of Central High School” is a patently stupid way to refer to a student body, whereas “the pilots, flight attendants, maintenance, and other professionals of Pacific Airways” is intuitively sensible.

So why is a top-level gender classification of an organization seen as rhetorically acceptable and perhaps even the preferred way to refer to the organization’s members? There are a number of possibilities. First, perhaps this usage reflects the pervasive belief that men and women are essentially different in ways relevant to just about every aspect of life, including jobs both genders share. This is a first step toward arguing that the common rhetorical phrase, “men and women of,” is an invidious one. And there is certainly lots of evidence in our society that many, many people believe the distinction between men and women is almost always relevant. That’s not to say that relevance is thought automatically to imply the acceptability of unequal treatment. It’s a weaker thing to assert that a classification among, say, workers is relevant to appreciating the social dynamics and character of a workforce than to claim that a classification should be the basis of different treatment. But, often enough, people also believe that gender justifies different, but perhaps not what they would recognize as unequal, treatment.

As the father of a young girl and a young boy, I’ve lived under the social pressures to give boys and girls different childhood experiences. From colors (pink and blue), to varieties of play, to dress, children grow up with profoundly different kinds of reinforcement and opportunities depending on their genders. There’s a debate over how much of this is innate and how much kids’ tastes are shaped by marketing, expectation, and peer-group pressure. Other social animals exhibit sexual segregation or at least inhabit different roles within groups. I know almost nothing about research into the social expression of innate human sexual differences. But I would very surprised if evolution has not resulted in at least some different social proclivities among the sexes. After all, the struggle over the eons has been to attract one another.

Whatever payload natural selection has left in my own children, I see no reason to reinforce gendered distinctions that have no obvious relevance to modern society and which are hindrances to affording others opportunity and respect. So my spouse and I never forbade, but did not selectively encourage, princess play or truck play or superhero play or pink markers or blue markers. My son fell in love with Star Wars, true. And my daughter developed a particular kind of interest in animals that is more often associated with girls. She also has been more attracted to sparkly things and, more recently but to some extent for a long while, clothing, hair styles, and nail polish. (She also loves the Lord of the Rings, great white sharks, and videogames more associated with boys.) I have no way of saying how all their tastes have come about. This is a massive topic that to discuss would take a book-length treatment and knowledge I don’t have. You quickly learn as a parent, though, that while you can do your best to impart values and taste, your children will substantially be a product of the culture in which they live, just as you have been. That felt understanding leads to a critical appraisal of what that culture is telling them.

That’s why I’ve balked when a politician acknowledges a debt to our “brave men and women of the armed forces.” Why should my kids believe that one’s gender has anything to do with one’s place in the armed forces? The obvious rejoinder is that the phrase does not mean to imply any difference in status. Kind of like the judicial rationale for upholding the appearance of “in God we trust” on our money and “under God” in our pledge: The Supreme Court has told us that these are only secular acknowledgments of the role of (non-sectarian) civic religion in our history but have no religious expressive value. In other words, they’re ok for the government to say because they do not mean at all what they purport to say (and, ironically, what the zealous advocates of theocracy believe them to say). So too, the justification for “men and women of” might be that it means nothing, only another way of saying “people.”

Perhaps we can take a cue from the religious example, though, and give an even more charitable reading to the phrase. At one time, one could accurately say, without imparting to the word “man” a universal quality, “the men of the armed forces” or “the men of Central College.” Adding “and women,” far from having any discriminatory intent or effect, signaled the importance of the recent inclusion of women in formerly male-only institutions. When I was growing up, people started saying “our forefathers, and foremothers” in speeches, orally set off in commas, inducing a knowing chuckle at the then-common tendency to undervalue the contributions of women in the early days of the Republic. It was a reminder of the undesirable exclusivity of the word “forefathers.”

A CEO who praises the “men and women” of the company does not, under this view, communicate a different appraisal of their roles but respect for their equal contributions. There’s a problem with that, however. Why would the same CEO not open a speech by praising the “blacks and whites” of the company? Surely, African Americans have struggled to overcome systematic exclusion just as women have. And as surely, it’s still important to signal their equal status, the rejection of discrimination, and to welcome the arrival of policies of inclusion. But we don’t do that in this way. Why not?

Highlighting the social groups that compose a company is a double-edged sword. It can signal the presence and importance of those groups within the organization even as it reinforces the relevance of the distinction. Some conservatives have taken the irrelevance of racial and gender distinctions to mean that no policies should ever turn on them, even those policies meant to achieve greater inclusion in areas of life where women or minorities are underrepresented and have been excluded in the past. This is a mistake, in my view. But it’s a bit curious that the zeal accompanying the insistence on the irrelevance of the distinction, to the point of abject hostility to “identity politics” and the Colbert-like insistence that we just not see race at all, does not cause a moment’s hesitation at “the men and women of.” In fact, I wouldn’t be surprised to find empirically that the phrase is more often be used by CEOs who are otherwise allergic to group-based politics.

Just to be clear, I don’t mean this to be personally critical. I don’t think that saying “the men and women of” means the speaker holds essentialist and incorrect views about the capabilities of the sexes. It’s embedded in modern rhetoric, and I’m rambling along thinking about why that might be. So let’s consider another possibility that is yet more charitable to the phrase, one you might consider when trying hard to be fair to such speakers’ intentions. I’d call this aspect of the phrase “vivification.”

Why, after all, did we ever use the phrase “the men of”? When I hear the word “man,” I summon a picture more specific than that when I hear the word “person.” When you hear “men and women,” if you’re like me, you sometimes summon an image of a somewhat generic group but made more flesh and blood by the admittedly weak visual cue the gendered words carry. If I want you to think of the laboring and helpful human beings staffing my organization, perhaps saying “men and women” instead of “people” makes it more likely you will imagine a group of actual human beings than a faceless bureaucracy. Specifying gender is a gentle, subtle cue to physical features — secondary sexual characteristics, to be sure — that distinguish us from the cogs of a machine. We could as well say “the hard-working, tall and short people of Skyways Airlines,” but it would be such a novel way of injecting human characteristics that it would quite obviously not have the desired effect. And so, maybe “men and women of,” born of a purpose to be inclusive in a world of very recent exclusion, is now an available means in rhetoric of humanizing an institution. If this is its purpose, we should recognize that we’re piggybacking on cultural understandings of the stereotypical physical differences of the sexes.

Well, I don’t have any answers. I admit that I don’t particularly like the phrase “the men and women of.” My perception is that it tends to be delivered to achieve a solemnifying effect by politicians and corporate officers. At this point, I think its effect, if not its purpose, has shifted away from laudably signaling inclusion and toward reinforcing distinctions that should not exist. By now, inclusion should be a given. Just as obviously, its binary phrasing is problematic as transgender individuals achieve greater social acceptance.

I’ve found it funny how, in all the wars over gendered products and the sexual politics of the workplace, some uses of sexual differences go unremarked. It just seems like a pretty big deal to me when a leader of a large organization introduces it by asserting, right from the beginning, that it’s a union of sexes. Weird, huh?


Let’s suppose that President Obama has long believed that same-sex marriage is a civil right. What should we make, in that case, of his recent announcement that he believes gays should be able to marry? In my view, the President, no matter how longstanding his opinion, was right, or at least justified, to wait until now to announce it. And further, the Supreme Court ought to wait just a bit longer, if it can, before enshrining that understanding in the constitutional pantheon, as much as it belongs to be there.

First, I should emphasize that it may well be that Obama has only recently come to the personal conclusion that the law ought to recognize such marriages. He may even believe now that there is no federal constitutional right that would trump the many state statutes and constitutional provisions to the contrary. I doubt it, but I don’t mean to imply in what follows that his true, personal beliefs are other than how he has described them.

Instead, I want to emphasize the obligations and considerations in taking a position as a representative. There is and should be a difference between an individual’s wants, even concerning the law itself, and his or her wants for the institution he or she represents. In short, any representative must understand the importance of roles.

As a relatively unimportant assistant professor, I can express wants for my law school or university that I would not and should not express were I the president of the university. That’s not at all because a president must act in craven, political ways. Rather, my role as an individual faculty member includes an obligation to voice my opinions, adding to the menu of options offered up by others that will inform but not determine the ultimate decisions. As president, this option-producing function is not what’s most important. The university president is both a decisionmaker and a representative. He or she must indeed exercise independent judgment, but for the president to say, in this role, that something should happen or should not happen is a statement about the institution’s intentions, not simply his or her own.

When the President of the United States announces what he believes the law requires, he states something much more than a personal view. He has an obligation to represent the People and in doing so to announce not his own opinions on the controversies of the day, but his view of the proper role that the United State should play in understanding and resolving them. Balancing the need to be a good agent of the People (and not only those in your political base) while also being a good leader is the most difficult act that any scrupulous and well-meaning president must undertake. One must simultaneously give voice to those you lead and actually lead them.

“Do you believe in gay marriage?” becomes, when posed to the President, “How does the Executive Branch view the question of gay marriage?” These questions are not hermetically isolated, but they are nonetheless different questions.

The people of the United States have radically changed their mix of views on the sources of, morality of, and acceptability of homosexuality. However one dates this change, from early activism to the AIDS crisis (Philadelphia) is under-appreciated in this regard) to hum-drum, contemporary sit-coms, the normality of homosexuality and the humanity of gays have now been fully revealed to all who participate in popular culture. This has had the effect of encouraging more people to come out of the closet, which has led to more people having friends and family they know are gay, which only reinforces personal perceptions that gays are, in fact, ordinary people like the rest of us.

It’s a virtuous cycle and the engine of the inalterable trajectory of this issue: People who change their minds are changing it in favor of gay marriage. The population most hostile to homosexuality is dying off. The result of these fundamentals has made the ultimate outcome of this “debate” clear for a long time now, and the trend will only accelerate as people rush to get on the right side of history.

And so, the question has been at what point should the President announce his support for gay marriage. Last year, the White House decided not to defend the section of the creepily-titled Defense of Marriage Act that prohibits federal recognition of same-sex marriages performed in states that permit it. That was a statement that the federal government, if the Executive has its way, will bow to the determinations of states on either side of the issue in determining federal benefits. It did not state that the Executive had taken a position on how a state should resolve that question.

With his recent personal “affirm[ation],” the President has expressed that he, in his role, would like to see gay marriage approved, while explicitly suggesting that the question should, for now, be left to the states. This affirmation is, effectively, suggesting that the states should determine not whether but how quickly gay marriage is legalized throughout the nation. And, incidentally, he suggests they should kind of hurry the hell up, lest your state be one of the stragglers that is ultimately cleaned up by federal fiat - Loving v. Virginia style.

The same is true of Supreme Court justices as is true of the President. The questions they resolve are not identical to the ultimate ones: what does the Constitution require? Rather, a justice must decide what the Supreme Court should do when hit with the question of a law’s legality. Because the Constitution rarely provides clear answers to such questions, it is all the more crucial that a justice understand what role the Court should play and how the Constitution is addressed to that role.

Viewing the Court in this way makes it much clearer why the Court most typically ratifies rather than forges social movements. The “under God” part of the pledge — a red scare-era addition meant to distinguish us from godless communists — seems quite obviously an unconstitutional act of Congress. But that does not mean that the Court had an obligation in the Newdow case to decide as such. While it might have been illegitimate to decide, substantively, that Congress had no sectarian purpose in adding the reference to the Abrahamic deity, punting on standing grounds was probably the better way to permit our society to work out the meaning of the Establishment Clause, that is, the proper role of religious reference and motivations in the public sector.

The choice the Court faces in the gay marriage cases may be more difficult. It would be better if marriage equality won out democratically — if we all owned the decision to be more inclusive. The Court would still be needed to pick up the pieces in a few years, compelling the handful of recalcitrant states as it did in Loving v. Virginia. But its hand may be forced by litigation, such as that in the Ninth Circuit pursued by Ted Olson and David Boies (and countless others, like the rather awesome San Francisco city attorneys).

Perhaps the Court will find a way to let these victories stand while giving the states another couple of years. Honestly, I think that’s all it’s going to take.

When Obama suggests that the marriage question should be left to the states but that he believes gay marriage should be legal, he has made a profound move. The statement more or less consolidates some of the administration’s existing positions and provides signals concerning the future. It tells us that he believes the role of the federal government should be to remove any federal barriers to marriage equality and that it should encourage states to do the same. It also tells us that the day is coming when the federal government, through the Court, will ratify the changes in public acceptance of gay marriage that are not only ongoing but accelerating. Making such a statement is a weighty responsibility, and the President did nothing wrong if he delayed, even if for a long while, before doing so.


Back in the fall of 2007, Wired held a contest to create a new slogan for NASA in lieu of NASA’s internal favorite: “NASA explores for answers that power our future.” Yeah, not so good, but the hive mind of the internet doesn’t always produce spectacular results either. In this case, the top three entries were:

  1. Exploring Other Worlds, Understanding Our Own
  2. NASA: Explorers Wanted
  3. NASA: Bringing the Universe to Your Doorstep

So… not great. My own not-so-great entry was one word with a period that I thought captured the idea that would sell NASA to a budget-minded public. With appropriate typeface and logo-ization, the word would appeal to that innate sense that we’re part of something bigger, part of a progression, that the burden is now entirely on us to take the next giant leap. Simple and yet leaden with the weight of childhood dreams.


Well, it got no traction and disappeared among the thousands of other suggestions that people felt strongly about. Today, I’ve been vindicated! There’s no way I could waste such a rare moment. Looks like someone else has seized on the power of that word (and on my preferred strategy of a “getting shit done” message).

While it appears to be just the name of this video, the Obama campaign could do far worse, in my not so valuable opinion, than use this word as an organizing principle. Behind it would be the primary, emotional messages: under control, getting things done, and doing what he says. The action equivalents of confidence, work ethic, and trust, respectively.

I’m not pushing any politics here, just interested in the way sets of positions and compromises can be emotionally bundled.


The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.

Justice Scalia, Stop the Beach Renourishment v. Florida Dep’t of Envt’s Prot., 130 S. Ct. 2592, 2608 (2011).

The Supreme Court has begun its epic consideration of the “most important case ever” — the one reviewing the constitutionality of Obama’s health care reform.  Under established law, the case is neither difficult nor very interesting.  The challenge is to Congress’s power to impose a (modest and essentially compensatory) penalty on those who do not purchase health insurance as a necessary step to its objective of guaranteeing health insurance coverage for more Americans.  As many, many people have written, this is surely a necessary and proper means for regulating the interstate, commercial markets in health insurance and healthcare in order to ameliorate the severe problems suffered by and imposed on others by the uninsured.  (Whether it is a wise or good means is not a question that the Court has the power to consider.)

I see the case as a kind of constitutional oddity, where we’re just left with jaws gaping, wondering how we got to this point.  The point where the specter of government forcing you to buy broccoli is bandied about as a serious reason to dismantle the post-Great Depression understanding that Congress has power to attempt real solutions to national problems.

The vehemence of the debate is made both possible and inevitable by the uncertainties embedded in the Constitution. The words of the Constitution do not provide absolute constraints on their application.  Congress has the power to regulate interstate commerce and to do all things necessary and proper to regulate interstate commerce.  What’s commerce?  What’s necessary?  What’s proper?

When words have such open texture, there is room to locate within them many different outcomes in concrete cases. If you hate Obamacare, you’re drawn to thinking of it as illegitimate, surely representative of government excess.  And here’s the clause of the Constitution that defines that power, doesn’t grant unlimited power, and so must contain a limit — of some kind, right?

When constitutional or statutory language is unrestrictive, disagreements about how to apply it is played out in a predictable fashion.  Not being able to settle the dispute definitively using language, text, and intention, the debate shifts.  Legitimacy, not correctness, is the criterion for victory.  Tactics in such debates include pointing out the personal inconsistencies of the debaters, breaks with tradition, or slippery slopes.  We saw all this on display in the Obamacare litigation.

While the opinions may well sharply differ from the views their questions implied, the conservative members of the Court insisted: that there just must be some judicially enforceable limit to the commerce power, that personal liberty to refrain from commerce is implicit from an unwritten, vague penumbra of constitutional provisions, including the commerce clause itself and the Tenth Amendment’s reservation of unspecified rights to the states and people, and assertions concerning the unprecedented nature of the individual mandate.

The liberals pointed to the routine nature of commercial regulation, the particularities of this market (impliedly noting that most regulations are particularized for certain markets and that health care is an especially odd market), the history of judicial restraint in reviewing economic legislation, etc.  And many of us have marveled at the suggestion  of unwritten, penumbral individual rights on display in Scalia’s questions, a glaring, personal inconsistency if embraced as doctrine.

Indeed, if the questions reveal his thinking (a big “if” and so I use his name for discussion purposes not to criticize views he has not yet claimed as his own), Scalia has neither precedent nor personal consistency on his side.  But that doesn’t mean he’s wrong here.  He’s using a document that provides few constraints to infer concerns about the extent of federal power that trump concerns about the ability to solve national problems.  

We liberals typically see in the Constitution’s structure and historical development a concern for federally protected individual rights and a gradual realignment in favor of broad federal prerogatives to the detriment of state sovereignty — and the counter-majoritarian uses, rather than elite-protecting ones, of federal courts.  These broad principles lead us to find, in the uncertain language of due process and perhaps other clauses, a right to privacy and more robust protections for criminal defendants and others who are not likely to be able to protect themselves in the political process.

Scalia doesn’t think much of doctrines like substantive due process and the right of privacy that he perceives as unmoored from the constitutional text.  These doctrines, he maintains, provide no limits on judges and permit them to make essentially political judgments on a case by case basis.

But here in the Obamacare cases, as in cases striking down congressional acts in the name of “Our Federalism” rather than specific provisions, Scalia might find his own roving, super-textual mandate for expunging legislation that interferes with economic rights and property.  Indeed, the last couple of decades have seen a wave of conservative attacks on the post-Depression legal order: attempts to restore judicial protections of states rights and individual, economic and property rights.  From Citizens United, to the conservative reaction to Kelo v. City of New London, to efforts to expand the reach of the takings clause, to the effort in Lopez to reinstate commerce clause limits, to the sovereign immunity and anti-commandeering cases, to the subtle shift from suspect classes to suspect classifications in Equal Protection law.  These threads come together in the health care cases.  But only because conservatives have chosen to bring them together.

If Obamacare feels, deeply and intuitively, excessive, as I assume it does for some libertarian-minded conservatives, it’s natural to find it inconsistent with a constitutional scheme aimed to cabin excess.  First, you just assume there must be a “limit” to what Congress can do under the commerce clause, a limit beyond the existing ones (the Lopez limit to commercial activities when aggregating individual activities to find a substantial economic effect) and the protections against rights violations.  But the direction and magnitude of this limit a not specified, a principle beyond “The Federal Government Must Be Limited” is not made clear.  Under such conditions, any use of federal power lies on some vector from the origin, along which we can argue at some point lies “too far.” If we have no principle to tell us what purposes the limit serves and what it demarcates, then for any law we can scan around us, 360 degrees, to find the direction in which their is a downward slope, and we can call it slippery.

So what’s the alternative? Originalism or textualism? No.  Scalia’s right to look at the power-conferring and rights-protecting language of the Constitution and wonder what structure it implies.  It sets out ideas, ideas that reflected and gave birth to practices, and ideas that set the terms of debate.  But absolutely nothing in the clauses themselves provides a definitive answer, even in these very easy cases.  (I don’t mean here to imply I’m providing any kind of rebuke to recent academic writing concerning the various sorts of originalist interpretive theories.  It’s true that I don’t think they work, but this isn’t an argument to that effect.)

What’s odd is not that Scalia does this but that he worries about such odd things.  There’s a reason, for example, to worry that textualist elimination of the right of privacy would unleash governmental power inconsistent with the Constitution’s own structure.  Not only is it a possibility that government could do all kinds of bad things without the protection of judicially enforced privacy rights, it has actually happened.  There are reasons to believe that majority-controlled legislatures filled with culturally and religiously homogeneous legislators might not respect the integrity of the private lives of political minorities.

But what reason do we have to fear that government might force us to engage in unwanted economic transactions that similarly threaten to undermine the anti-authoritarian aims of the Constitution?  Is any actually worried that this law is indeed a stepping stone to one forcing us all to buy broccoli or to exercise?  In a nutshell, what reason is there to think that the political processes, elections and such, aren’t good enough to protect us from such things?  And, most importantly, can you think of any areas where the political processes would indeed fail but where the rights to autonomy contained within and among the Bill of Rights and Civil War amendments would be inadequate to the task?

Politically, I see Obamacare as an attempt at compromise, an attempt to do something about the millions of uninsured while leaving as much to private markets as possible.  I’m left to scratch my head and wonder what opponents wish to do actually to solve this problem.  Do they understand the extent of problems many Americans have in this market?  Consider this:

[Young people without health insurance] aren’t stupid.  They’re going to buy insurance later. They’re young and need the money now. ….  When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance like the rest of us.

Justice Scalia, at oral argument (emphasis added).  And there it is.