Well actually slaves are not just people with a 100% income tax but people with 100% time tax. Technically with high tax rates you're free to exercise the Galt option of just refusing to work, or refusing to work your best. Slaves didn't have that option.
In terms of liberty infringement, it is if you define liberty as the amount of choices you can practically make. Imagine a boy with very few skills but from a family of vaste wealth. A 100% income tax may have no impact on his freedom. He can consume just about anything he wants and since he lacks the ability to earn much beyond min. wage the 100% income tax doesn't take much away from him except maybe the ability to spend only $1B per year as opposed to $1,000,012,000.
But if you're going to go down this road then what about a deep economic recession that has unemployment spike at 15% instead of 9% because a libertarian influenced Congress refuses to pass a stimulus bill and a terrorized Fed restrains from keeping rates low? Those 6% who could have had an income now have none for the year. How would that not be the equilivant of a '100% income tax' infringement on their liberty?
Say Roe was overturned and the state made abortion illegal. It would seem like killing abortion providers would be permitted by this law. Perhaps we have a case where we have a back door to legalized lynch mobs with this law, ready to be triggered when and if Roe is reversed.
I think it's not so hard to understand, but you have to look past the words they use. The fact is they don't like gays. They don't like the idea that people are gay and they don't like the idea that's it has become more accepted and tolerated. Hence they will oppose policies that sound relatively harmless and fair (such as allowing visitation) because they represent the few sources of pseudo-stigma still left in society.
What's problematic is that honesty has been booted out of the debate. Instead of just coming out and saying this is why gay marriage is opposed, we get convoluted word games that purport to demonstrate their motivation is anything (concern for children, concern for the divorce rate among straight marriages, monogamy, a deep respect for tradition, etc.) other than what it really is.
What unites these two aspects of marriage would appear to be a hidden premise, one I think very carefully hidden because it is so ridiculous: the premise that only heterosexuals are fit to raise children, and that not only are homosexuals sub-optimal, but they are more sub-optimal than any heterosexual union at all.
Although the relationship of legal marriage to 'fit to raise children' seems pretty loose. There are plenty of couples who can legally get married (such as your mentally impared hetrosexual herion addicts) who could never adopt children. Likewise there's plenty of unmarried people who adopt or have their own children. Why then is the focus of arguments about gay marriage so centered on children when almost all children that a gay married couple might end up raising could just as likely be raised by the same gay couple living in a state where they can't legally marry?
But it is a mandate. The Constitution says nothing about mandates being any better or worse than any other type of regulation. Likewise if mandating employers was OK 300 years ago why wouldn't mandating people be ok today?
I don't think the word that's important is so much "different" as "symetrical". You're coming up with hypotheticals and asking, I think, are they symetrical in their infringements on liberty. For example:
1. You must buy a Bible
2. You may not buy a Bible.
#1 is the 'mandate' type bill and #2 is your more traditional prohibition type bill. I don't think they are equal, though, in terms of infringements. In fact, #2 seems like a bigger infringement. If I must buy a Bible I'm out $5 maybe but I'm not being asked to believe in the Bible. On the other hand, if I do believe in the Bible #2 is a big problem for me, a big infringement on my liberty.
What's revealing here is that there's nothing inherent about 'mandate type' laws that are clearly worse than 'prohibition type' laws. For example, it's quite possible to see how #1 could be a valid law. Consider public schooling where parents are expected to buy books (as you do in college). You very well may end up having to buy a Bible if world literature is one of the classes.
You may object that states, not the Fed. gov't runs public schools. OK, but Congress has power to act as state gov't in territories of the US so if we aquired a new terroritory that isn't yet admitted as a state Congress may be running public schools there. If that's the case why is requiring parents to buy books for their kids fundamentally different than Congress buying the books and giving them tot he kids?
And....if the reason that mandate policies are relatively rare is that they are often just not very practical (in many, not all times and places) then I think that implies your aversion to them isn't based on anything in the Constitution only that they 'seem strange' to you so you figure there must be something in the Constitution against them. Your argument then reduces to just emotions whose proper place isn't in the courts but in elections.
Sorry, it's been a long day and you may have to spell things out for me a bit.....
Look at the militia example more deeply. Why did Congress choose to make everyone buy a rifle in the 1790's but in the 1910's it had the gov't buy the rifles to give to troops? It was pure practicality. The gov't didn't have a purchasing organization in 1790, couldn't do quality control, couldn't do distribution etc. It was just easier to make everyone in the militia buy their own rifles. In 1910 things were different, you had too many different types of rifles on the market and the military needed standardization and had the ability to do it.
At no point though, does it seem like anyone cared about the liberty issues of the original mandate method versus the later non-mandate method. Both are essentially the same in that they are policies that are 'necessary and proper' to carrying out a clear power of Congress. At no point did anyone seem to think the Constitution meant that 'mandate policies' had some higher hurdle or test they had to meet.
A philosophical difference? We are discussing a Constitutional one and the question is where do you derive your 'philosophical difference' from the actual constitution itself?
All these examples raise different Constitutional issues but the premise raised is that the first Type of law have a higher set of Constitutional hurdles to leap. Hence the fact that there's few examples (but hardly zero and being that we have examples from very early in our history that's a strike against this premise). How does this counter the alternative view that 'mandate type' laws are simply rare because they are usually awkward policy solutions that also are hard to enforce.
The problem you have is that the Constitution gives Congress the power to pass all laws 'necessary and proper' to carry out its powers. Hence today to carry out the power to provide for a 'common defense', Congress can pass a law to award a contract to deliever M16's to the Department of Defense. But Congress could also opt to approach the problem from the other side and require individuals to buy their own rifles, which is what it did over two hundred years ago.
Likewise if you think Congress has a valid Constitutional power to provide for health coverage for Americans, there's no Constitutional differnece between taxing everyone an average of $5K and then buying coverage, taxing $5K and giving everyone vouchers to buy coverage, or simply mandating everyone buy coverage worth about $5k.
Not really sure what you mean. The hypothetical law that would mandate buying at least one stamp a year would seem to disparage anyone's rights but be necessary and proper to Congress's enumerated power to establish an income tax.
What you quoted just says that the Constitution itself is not an exhaustive list of all rights retained by the people, that's it. It doesn't say 'mandate' type laws are inherently more disparaging of individual rights than 'prohibition' type laws.
Nothing in the Constitution says point blank that there's a difference between Congress passing a law saying you can't buy X versus a law saying you must buy X. All arguments to the contrary assume that there's a huge difference in terms of infringing upon liberty and while the former types of laws are ok 90% of the time the latter must be unconstitutional unless you can show some exceptional support for such a law.
The alternative, I think, is more correct. There's nothing inherently worse about a 'must buy X' law versus a 'can't buy X'. Infringement on liberty depends entirely on context. For example, consider the case of prohibition which is a 'can't buy X' type of law versus a law saying taxpayers must mail in their tax forms (imagine this is the pre-internet age). The latter law is a 'mandate' to buy a stamp since there's no way to legally get your tax form in if Congress specifically prohibits handing it in by private messenger or in person. But it seems pretty silly to say such a 'stamp mandate' is somehow so unusual and so hard on liberty that it's worse than prohibition....which people felt was so big a deal that they got an amendment to support it.
The Seaman Mandate and militia bill cited then are important not because they are exact analogies to the health bill mandate (or I should say alleged mandate since it's actually an income tax that pundits just call a mandate). They are important because they demonstrate that early Congresses were not shy about passing mandate type bills. They didn't see them as requiring exceptional justification or support Constitutionally. Mandates simply turn out to be rare for practical reasons rather than exceptionally high Constitutional barriers.
Sounds like it, do you know any insurance company that cuts a 'foreever' health insurance plan? I would imagine as plans expire and new ones are created the choice would be either adopt one that meet's all the requirements or apply for a brand new waiver.
More importantly what exactly is the issue with waivers? Why should one get upset at the news that lots of waivers have been granted absent any other context? This is hardly the first law that has waivers as a feature, Medicaid and Medicare has lots of them and it seems they can be very helpful in providing some flexibility to try something creative without having to negotiate a new bill.
Reagan very much supported sending grain. He accused Carter, who embargoed the USSR in reaction to its Afghanistan invasion, of using 'food as a weapon'
The 'won the Cold War' narrative forgets too much history. Reagan's career was one large flip flop in regards to the Soviet Union. In the 70's the most dramatic development was Nixon's opening relations with China. This was premised on rejecting a major right-wing meme about Communism, namely that it was monolithic and so fundamentally at odds with freedom that co-existence was impossible. (Basically a lot of commentary by the low brow right in regards to Islam basically is taking the assertion and just changing the names around....'We are at war with Eurasia, we have always been at war with Eurasia!!')
The right is pretty good at pounding on an idea no matter how much reality refutes it (see supply side tax cuts), but sometimes when they actually have power they are forced to be realistic. Nixon, who was previously known for his anti-communism, took the opposite premise. The right was ballastic. They argued that you could see the Communist world was never going to cease war against the free world, just look at these quotes from Karl Marx! They argued that China and the USSR were very close, any 'splits' were just a ruse to con the US into thinking that we can play the master chess players in the Kremlin.... If only the US did more anti-communism, more playing up to anti-communist 3rd world dictators, more direct fighting, more arms buildup etc. Attempts to cast the world as a bit more complicated were mocked as niave...(including the idea that we might have other threats besides communism, such as, say, radical Islamic terrorists....as a side note, this is why Israel is an issue that crosses party lines. Back then Israel was a mixed bag when it came to the right. With its sometimes explicitly socialist gov'ts coupled with the fact that it made trouble for our relations with explictly anti-Communist but authoritarin Arab regimes like Saudi Arabia the right wasn't united behind Israel the way it is now. I can recall watching Jimmy Swaggart on the TV preaching if we 'just got out of Israel' we'd have no problems in the Middle East, ambivalence on Israel is clearly evident in some paleocons like Pat Buchann).
History, though, proved the right wrong. While theologically commited to a 'world revolution', communist governments had gotten quite comfortable with a status quo of co-existence with the west. The stock character from thrillers, the Russian official who parries with his Western counterparts here and there only to end the day sharing a drink of vodka with them and wax philosophical wasn't too far from the truth. If the US had surrendered to the USSR they probably wouldn't have known what to do with it. Likewise communism ceased to be monolithic. On the edge, client states didn't fear the heavy hand of Stalinism which was dead for decades. They became hungry demanders of welfare from the center (see Castro). In the core divisions were there from almost the beginning. We now know, for example, that the USSR and China almost ended up at war with each other and had multiple clashes where their troops fired on on another.
What's ironic about this is that while the right refused to believe this about communism, in a different context if you asked them what was wrong with communism they probably would have predicted it. A system that put so much power in one party or one man would almost certainly not remain true to any philosophical calling (like liberating the working class) but would instead seek first to expand their personal power and then seek to preserve the status quo. How could communism remain monolithic when all of history has shown any authoritarian Empire generates tremendous instability in the top leadership (see Rome & China)...
Anyway Reagan came into office as a right winger. Out with negotiations and arms treaties, those crafty smart Soviets always outwit our dull negotiators a the table! Try to engage Communism with hot and semi-hot actions at the edge (but then the spectre of Vietnam was still infuential, we'd have to wait till George W Bush before full international adventurism came back). And, of course, continue Carter's arms build up. And Dems more or less went along. Yea there was some back and forth on the details, debate about various weapons systems like the B1 Bomber and Mx Missile and later 'star wars', but the Dems controlled Congress and could have stopped Reagan in his tracks if they wanted too.
Reagan, though, did an about face with Gorby. Like Nixon, he reassessed the nature of Communism as it existed in the real world. He determined that the system inside the USSR might be able to mellow and reform itself after all. Negotiations started again, and just like with Nixon the right went crazy. Reagan was branded as a fool and a sell out (I recall reading a far right wing Catholic magazine my mom used to get, never be fooled that the left was mean to Reagan, no measure of mockery was spared for Reagan including using his wife's penchant for astrology against him). But the right was wrong, the USSR was changing for real (remember the right maintained till the end, even after the end, that the USSR was strong and had no real weaknesses....if things looked otherwise it was just well coordinated ruse to make the West feel too comfortable).
When the end came, I think it took everyone by surprise, including Reagan. But as people forget the facts the construction of a narrative begins. The narrative now is that the USSR was super strong in the late 70's and early 80's. Reagan, though, engaged in an arms race with them and that 'bankrupted' them....esp. when they saw that round II would be Star Wars which would be even more expensive than round I's more conventional weapons and nuclear missiles. At some point there's some fuzzy economic collapse and then communism is dead.
But this narrative doesn't really fit very well if you look too carefully. First of all North Korea shows us military states do not really go bankrupt. 80% of the population can be eating grass and the military will not get a single cut. Second, an 'arms race' needn't be that expensive since the entire premise of the Cold War was one giant bluff. The US builds 100 missiles. The USSR announces it will build 200. The right wing in the US helps the USSR by declaring the US is 'losing', etc. In reality the USSR claims to have built 200, only really built 130 and of those 60 at any moment are off line due to lack of spare parts or shoddy construction. Ironically in the US, if the claim is 100 missiles were built 100 were probably built and if 5 are offline due to shoddy workmanship the left and the media rakes the administration over the coals for its 'giveaways' to the defense industry. Basically the US has to spend real money on its arms buildup because of its free press and competitive political system. The USSR gets to bluff its way around it because they have a controlled press and no political competition. The arms race narrative only works in hindsight. At the time the right wanted an arms race because they saw a war with the USSR as inevitable. The problem with the narrative is that it's premised on a bluff that's never called. 200 missile silos appear like the USSR has won over the US, if neither side never actually launches anything from them.
More importantly if an aggressive military build up was all that was really needed to topple Communism then the narrative does a real disservice to previous history in the name of mythologizing Reagan. The US engaged in a massive buildup after the WWII demobilization ended. The US didn't just engage communism in bluffs but in hot wars in Korea and Vietnam that dwarfed anything Reagan did with Nicargaria or Grenada. The US was the first to build the hydrogen bomb, the ICBM, the spy plane, the nuclear sub etc. The narrative tarnishes the US by making believe the only time we were serious about military innovation was Reagan's Mx missile and Star Wars.
And likewise Star Wars was never much of an economic or military threat to the USSR. At best the US would have gotten a system that could take down 100-200 ICBMS for a few Trillion dollars. The cost to the Soviet Union to build an extra 200 ICBMs, peanuts. Likewise there's no reason to think the planers in the USSR wouldn't have viewed Star Wars like most previous innovations. They would let the US spend the serious R&D money and then get the weapons on the cheap by basically copying or stealing the designs from the US, that was basically how they got the nuclear bomb to begin with (Ohhh BTW, it's often forgotten that Reagan wanted to offer the USSR Star Wars technology for free....another reason the right wasn't quite so happy with Reagan the person versus the later Reagan the myth).
It would appear then that the argument against using the commerce clause to mandate getting coverage appears to be generated from novelity. It's hard to think of other examples of Congress directly mandating the purchase of something therefore this must be some novel type of power which must be unconstitutional unless we can prove otherwise.
Necessary and proper, though, would move the test to the question of whether the general goal of the law (trying to get Americans covered) is a legitimate power in itself and then decide whether the particular law (mandating coverage) is both 'necessary and proper'. Necessary I take it would be a weak test, does the law reasonably relate to its goal....not whether it was the best of all possible laws that might be implemented to persue that goal. Proper may not have much added meaning here (sort of like "unusual" doesn't seem to alter the meaning much of "cruel and unusual punishments"....although a wit could read this as saying a punishment that was cruel but common wasn't banned!)
If I had to shorten this argument a bit, it sounds like the clause is saying if you have something that's a power of the Congress, Congress may pass whatever laws are needed to exercise that power.
To use an example, Congress may provide for the common defense. As a result it can pass laws traditionally related to this like establishing military bases, a draft, etc.
It can also pass unprecedented laws should it be necessary to 'common defense'....like a law saying that all who die need to be shot in the head and burned.....a sensible law if we are facing a zombie attack.
If Congress has the power to ensure health coverage, then laws related to that are permitted provided they don't bump into other clauses. If it's illegal to require people to buy coverage then it would also be questionable to provide it directly to them as in the case of Medicare for the over 65 group.
"Namely, that the President of the United States and his political coterie would – to get the bill through Congress – insist that the mandate is not a tax and then turn around and argue for its legality on precisely that proposition."
This may be why we are in such a rhetorical bind right now. The 'mandate' as it exists in the bill is an income tax, not a real mandate....yet the administration is arguing that a real mandate is perfectly ok in terms of the interstate c'mmerce clause. Why?
Well here's the President way back then arguing that it wasn't a tax:
1. His argument isn't really a direct "this is not a tax" but a kind of indirect "it's a tax but when you put it together with these other good things it's really not". Technically if you have A that raises taxes $100 and B that lowers taxes $100 you still have to say A is a tax incrase....but rhetorically you don't say that unless you want to get jumped on politically and 'soundbitten' to death.
2. No one really buys it. George Stephanopoulos, supposedly a representative of the liberal MSM, seems pretty much on top of the idea that it was a tax in the interview and presses the issue as hard as he can.
If even George Stephanopoulos saw it as a tax then the people who are really bending reality are those who now trying to assert it's a mandate. But if courts are to pay attention to legislative intent....well you have everyone back then saying it was a tax. Even the President was saying it was a tax by choosing to answer the question in such a convoluted manner. If he didn't he could have been more straight forward, "No it's not a tax, its a fine for breaking the law! No different than when the FDA imposes a fine on a company that sold tainted milk!"
Reagan was not 'loved' when he was in office. He was a politician like others, his approval rating went up and down and various people on the left and right sometimes supported him, other times didn't. He became 'loved' in retrospect (Kennedy's name went through something quite similiar).
If you were alive in the Founders age, you'd probably see them as politicians with their agendas, flaws and all. All this petty stuff gets forgotten about with time and the mythic view takes hold. The premise of Vidal's book and Bachmann's issue with it appears to be that the book doesn't celebrate the generation of the myth but instead tries to get at the truth. The problem with defending a lie, though, is that you can't just say it point blank. You can't just say "we are better off believing the myth than the truth" because once you say that you're no longer believing the myth but just pretending too.
I would say that torts are a bit more complicated because sometimes you have two different sides that honestly disagree over how to read a contract or over the facts of a case. Maybe I'm not paying you because I think you failed ot fulfill your side of the bargain, you think you did, we go to court to decide. Other times, though, I'm not paying because I don't want to or I don't have the money. We go to court so you can get a judgement. Legally I'm in the wrong which is why you win your judgement.
Ethics here are maybe too strong. It's perfectly ethical to ignore unethical laws IMO. So maybe imagine the law as a little voice in your head that says "You shouldn't do that". When you come to a stop sign and no one is around the voice says "you shouldn't run it". Sometimes, though, the voice expresses an option. Take out of your 401K early? The voice says "I'd rather you didn't". This conversation happens between you and a voice that represents the state. Torts are a bit different in that they are you versus other people or things where the courts decide the case. The state doesn't care if you stiff your brother-in-law on the $1200 he loaned you. The state simply provides a forum where this dispute can be heard between you two. But fundamentally it doesn't care in the legal sense. That's why your brother-in-law has to do all the work in filing suit against you etc.
BTW, the case of the overdue library books is pretty vague. On one hand you can view it as a 'rental fee' that just calls itself a 'fine'... or on the other hand it really is a rule. You are supposed to get the book back in two weeks. The $0.10 a day isn't an optional fee but a punishment for violating that rule. This isn't totally irrelevant as some towns issue warrants for people who screw the library over big time.
Anyway, in the bill all the language you cite are about what is required to avoid a particular income tax. This is evidenced by:
1. A 'penalty' in the tax code. As pointed out penalties in the tax code are almost always about areas where you have a choice. There's nothing in the bill to indicate this is any different.
1.1 The fact that the 'requirement' is income contingent also indicates that this is a tax. Laws of the type you are talking about usually apply universally, not so contingently. Granted laws often have exceptions (no one may drive over 50mph unless they are driving an emergency vehicle in an emergency), but they are often directly related to the laws purpose (provide for safer streets). A 'punishment' that hits you with a sliding 'penalty' paid to the state based on your income is generally called an 'income tax'.
2. The lack of enforcement beyond the tax code. Granted a state can pass a law without passing any real punishment, but since a criminal act is a serious thing I'd expect some real evidence that is what passed in this bill. If we were getting a lawyer debarred for advising a client ot skip insurance and pay the penalty he would mount a pretty serious defense on those grounds. Since the bill also specifically states that the IRS may NOT use the gov'ts criminal justice tools against those who don't pay or don't get insurance this would be cited as evidence that Congress was not passing a law against not having insurance coverage but creating an income tax penalty for not doing so.
I should also add that quite frankly women were not taken seriously in the 70's and before. This is pretty obvious when you look at a lot of the media from the time and before. Liberalism and Feminism were not one in the same despite what conservatives like to think. Many 'good liberals' in the era were had pretty crappy views as far as feminism was concerned and it took some serious culture wars into the 80's before serious change happened.
First, my 'apology' is, of course, sarcastic. I don't really see why anyone on the left should feel the need to apologize for Polanski anymore than the right need apologize for anything they didn't specifically do.
Second, if you have a beef with specific people who have argued the case for Polanski then take it up with them. "Hollywood" and "Liberals" here exist here as props for your attempts to forment class warfare. And do we really need that?
Third, to the degree that Polanski had a lot of defenders, I think the relevant factors at work ere:
* Sympathy for him considering the horrible way he lost his first wife to Manson's 'family'.
* A very different atmosphere in the 70's where sex had been liberated but not women. Hence the very casual way underage sex was approached...note how light the original deal appears in today's light. Most of us weren't very mature then but you can get a sense of the different attitude by some movies from the period. Note, for example, Taxi Driver features Jodi Foster playing a 12 yr old prostitute! But even less artistic movies like Freebie and the Bean casually has a side character who has a 14 yr old 'girlfriend' in bed with him at his apartment. The cops let him go when he gives up some info, making the whole underage thing seem like some minor technicality.
* Some people did get into the case and were honestly convinced the judge and prosecutor were not behaving correctly in the case. I can't comment so much about that since it's not anything I really care much about.
Now what does this have to do with Vidal's book? Not much that I can see. The one time I ever bothered to listen to Gore Vidal at length was when he was a guest on Bill Mahr's show (I was aware of the famous blow up between him and Buckley). He seemed pretty pompous and uninteresting to me....that he might have been jumping to conclusions and being pompus 40 years ago isn't very important. We could just as easily jump all over Bill Cosby for falling for Al Sharpton's Twana Brawley case.
Actually I do believe that. Required does not mean 'mandated by the laws of physics'.....if it did, though, what are you complaining about? By that standard the law can't require anyone to buy insurance unless it somehow altered the laws of nature to make it physically impossible not to have insurance in the manner that it's physically impossible to travel faster than light. If you want to push that as the meaning of required then I win the argument by default. I'll be a gentleman, though, and won't take the easy kill shot....
Required means in the context of law that you must do something. I am required to submit a tax return (provided I meet various criteria). I am required not to murder anyone. I am required to keep my speed below 50mph on certain roads. I am required not to knowingly write bad checks. I am required to park my car in a legal parking space.
These things the law requires of me in that if I am to be a law abiding citizen I must follow them. Now some people take that very seriously and are always law abiding citizens, others do not care about it at all and most are somewhere in between. When you break the law you are no longer a law abiding citizen. A different question is what happens when you break the law. The law has various punishments prescribed ranging from nothing to very harsh.
Now the important thing here is:
1. Just because there may be no punishment, it doesn't mean its 'ok' to break the law. The town may not say you must collect the election signs you put up 24 hours after the election. The town may not have bothered to set in place a fine for failing to do that. That doesn't mean it's legal to leave the signs up. It's not. If you don't collect the signs you littered the town with then you are breaking the law. Maybe you don't care, so don't, it still matters from a legal POV. Hence my question about the lawyer. As the lawyer's obligated to not advise people to break the law, he cannot advise the campaign to save money by not bothering to collect the signs after election day.
2. Fees != Punishment. As I said, you are obligated to follow the law. That means that when a law has a set of punishments for breaking it, that's not a menu of 'fees' or 'prices'. You aren't free to drive faster than 50mph on a certain highway, period! If the fine for speeding is $50 that doesn't mean you can 'buy' the right to speed by just paying the fine when you're caught. Some things, though, are treated as fees. "No Swimming, $50 fine" and "Town Beach, membership fee $50" are not the same thing even though an economics minded person who cares only about cost may see them as the same. The first you are required not to swim there, the second you may swim there at a cost of $50.
It makes sense then to note first that the way we have used the word 'penalty' up to now in the tax code has mostly been in the manner not of requirements but options. There's tax penalty for taking money out of your 401K early, but you aren't required by law to keep your money locked in your 401K until you're old. If you must have an objective definition of penalty it seems that a penalty is:
A. A tax.
B. A tax that's optional in the sense that the law gives you a practical way to avoid it if you want (I say that because while technically you can say you can quite working and earn no income to avoid the income tax, it's not practical therefore the entire income tax itself isn't really a 'penalty').
C. Often the behavior the incurrs the penalty is something the gov't is NOT making illegal but would rather you not do (i.e. taking money out of your 401K early, if the gov't really wanted to say you were required not to do that it could just require banks and financial firms to never disburse 401K's early)
If this is a requirement in the legal sense you take it to mean it's a rather odd 'punishment'. For one thing you are only 'required' if your income is at a certain level. Most requirements in the law are not contingent on your income, for example. But if it's a requirement to avoid a tax penalty, more specifically a requirement to avoid an income tax penalty (power clearly given to Congress...to tax income) then the 'oddness' disappears and it fit's reality like a well worn glove. You're argument doesn't fit so nicely. We would require a whole bunch of linguistic tricks to explain why numerous deductions, credits, and penalities for lots of other things in the tax code would also not be struck down OR we would have to adopt a whole new way of reading the Constitution's power to levy income taxes....a way of reading that not even it's author's seemed to hold. So if the glove don't fit, you must aquit!
Again applicable individuals are not required to do anything. To be required to do something means you must do it. There's no options, no choices, you must do it. In the context of that section of the bill, however, the person is required to do something to avoid an income tax of about $750 or whatnot.
This is why you refuse to address the question of whether or not a lawyer could ethically advise a client to not get coverage and just pay the penalty. You won't address it becaue it demolishes your argument. If the bill required people to get coverage then any lawyer who advised his client to not would be breaking his code of ethics. He would be subject to being disbarred. But no lawyer, no CPA, no professional who must stake his license and career on staying within the law is afraid of advising their clients to not get coverage and just pay the penalty. Since no such requirement exists in the law, such a client would be no different than a client who didn't want to donate to charity. The answer would be simply "don't donate, your income tax will be higher because of that".
Your argument can only be saved by arguing that the power to have an income tax requires that the only provisions involve things relating to income and only income.
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On “Government Spending and Liberty”
Well actually slaves are not just people with a 100% income tax but people with 100% time tax. Technically with high tax rates you're free to exercise the Galt option of just refusing to work, or refusing to work your best. Slaves didn't have that option.
In terms of liberty infringement, it is if you define liberty as the amount of choices you can practically make. Imagine a boy with very few skills but from a family of vaste wealth. A 100% income tax may have no impact on his freedom. He can consume just about anything he wants and since he lacks the ability to earn much beyond min. wage the 100% income tax doesn't take much away from him except maybe the ability to spend only $1B per year as opposed to $1,000,012,000.
But if you're going to go down this road then what about a deep economic recession that has unemployment spike at 15% instead of 9% because a libertarian influenced Congress refuses to pass a stimulus bill and a terrorized Fed restrains from keeping rates low? Those 6% who could have had an income now have none for the year. How would that not be the equilivant of a '100% income tax' infringement on their liberty?
On “Is South Dakota About to Legalize Pro-Life Terrorism?”
Say Roe was overturned and the state made abortion illegal. It would seem like killing abortion providers would be permitted by this law. Perhaps we have a case where we have a back door to legalized lynch mobs with this law, ready to be triggered when and if Roe is reversed.
On “Marriage and the Ship of Theseus”
I think it's not so hard to understand, but you have to look past the words they use. The fact is they don't like gays. They don't like the idea that people are gay and they don't like the idea that's it has become more accepted and tolerated. Hence they will oppose policies that sound relatively harmless and fair (such as allowing visitation) because they represent the few sources of pseudo-stigma still left in society.
What's problematic is that honesty has been booted out of the debate. Instead of just coming out and saying this is why gay marriage is opposed, we get convoluted word games that purport to demonstrate their motivation is anything (concern for children, concern for the divorce rate among straight marriages, monogamy, a deep respect for tradition, etc.) other than what it really is.
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I think this is the killer point:
What unites these two aspects of marriage would appear to be a hidden premise, one I think very carefully hidden because it is so ridiculous: the premise that only heterosexuals are fit to raise children, and that not only are homosexuals sub-optimal, but they are more sub-optimal than any heterosexual union at all.
Although the relationship of legal marriage to 'fit to raise children' seems pretty loose. There are plenty of couples who can legally get married (such as your mentally impared hetrosexual herion addicts) who could never adopt children. Likewise there's plenty of unmarried people who adopt or have their own children. Why then is the focus of arguments about gay marriage so centered on children when almost all children that a gay married couple might end up raising could just as likely be raised by the same gay couple living in a state where they can't legally marry?
On ““A History Seminar: Obamacare Has Nothing to Do with Seamen Mandate of 1798””
But it is a mandate. The Constitution says nothing about mandates being any better or worse than any other type of regulation. Likewise if mandating employers was OK 300 years ago why wouldn't mandating people be ok today?
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I don't think the word that's important is so much "different" as "symetrical". You're coming up with hypotheticals and asking, I think, are they symetrical in their infringements on liberty. For example:
1. You must buy a Bible
2. You may not buy a Bible.
#1 is the 'mandate' type bill and #2 is your more traditional prohibition type bill. I don't think they are equal, though, in terms of infringements. In fact, #2 seems like a bigger infringement. If I must buy a Bible I'm out $5 maybe but I'm not being asked to believe in the Bible. On the other hand, if I do believe in the Bible #2 is a big problem for me, a big infringement on my liberty.
What's revealing here is that there's nothing inherent about 'mandate type' laws that are clearly worse than 'prohibition type' laws. For example, it's quite possible to see how #1 could be a valid law. Consider public schooling where parents are expected to buy books (as you do in college). You very well may end up having to buy a Bible if world literature is one of the classes.
You may object that states, not the Fed. gov't runs public schools. OK, but Congress has power to act as state gov't in territories of the US so if we aquired a new terroritory that isn't yet admitted as a state Congress may be running public schools there. If that's the case why is requiring parents to buy books for their kids fundamentally different than Congress buying the books and giving them tot he kids?
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And....if the reason that mandate policies are relatively rare is that they are often just not very practical (in many, not all times and places) then I think that implies your aversion to them isn't based on anything in the Constitution only that they 'seem strange' to you so you figure there must be something in the Constitution against them. Your argument then reduces to just emotions whose proper place isn't in the courts but in elections.
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Sorry, it's been a long day and you may have to spell things out for me a bit.....
Look at the militia example more deeply. Why did Congress choose to make everyone buy a rifle in the 1790's but in the 1910's it had the gov't buy the rifles to give to troops? It was pure practicality. The gov't didn't have a purchasing organization in 1790, couldn't do quality control, couldn't do distribution etc. It was just easier to make everyone in the militia buy their own rifles. In 1910 things were different, you had too many different types of rifles on the market and the military needed standardization and had the ability to do it.
At no point though, does it seem like anyone cared about the liberty issues of the original mandate method versus the later non-mandate method. Both are essentially the same in that they are policies that are 'necessary and proper' to carrying out a clear power of Congress. At no point did anyone seem to think the Constitution meant that 'mandate policies' had some higher hurdle or test they had to meet.
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A philosophical difference? We are discussing a Constitutional one and the question is where do you derive your 'philosophical difference' from the actual constitution itself?
All these examples raise different Constitutional issues but the premise raised is that the first Type of law have a higher set of Constitutional hurdles to leap. Hence the fact that there's few examples (but hardly zero and being that we have examples from very early in our history that's a strike against this premise). How does this counter the alternative view that 'mandate type' laws are simply rare because they are usually awkward policy solutions that also are hard to enforce.
The problem you have is that the Constitution gives Congress the power to pass all laws 'necessary and proper' to carry out its powers. Hence today to carry out the power to provide for a 'common defense', Congress can pass a law to award a contract to deliever M16's to the Department of Defense. But Congress could also opt to approach the problem from the other side and require individuals to buy their own rifles, which is what it did over two hundred years ago.
Likewise if you think Congress has a valid Constitutional power to provide for health coverage for Americans, there's no Constitutional differnece between taxing everyone an average of $5K and then buying coverage, taxing $5K and giving everyone vouchers to buy coverage, or simply mandating everyone buy coverage worth about $5k.
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Not really sure what you mean. The hypothetical law that would mandate buying at least one stamp a year would seem to disparage anyone's rights but be necessary and proper to Congress's enumerated power to establish an income tax.
What you quoted just says that the Constitution itself is not an exhaustive list of all rights retained by the people, that's it. It doesn't say 'mandate' type laws are inherently more disparaging of individual rights than 'prohibition' type laws.
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Nothing in the Constitution says point blank that there's a difference between Congress passing a law saying you can't buy X versus a law saying you must buy X. All arguments to the contrary assume that there's a huge difference in terms of infringing upon liberty and while the former types of laws are ok 90% of the time the latter must be unconstitutional unless you can show some exceptional support for such a law.
The alternative, I think, is more correct. There's nothing inherently worse about a 'must buy X' law versus a 'can't buy X'. Infringement on liberty depends entirely on context. For example, consider the case of prohibition which is a 'can't buy X' type of law versus a law saying taxpayers must mail in their tax forms (imagine this is the pre-internet age). The latter law is a 'mandate' to buy a stamp since there's no way to legally get your tax form in if Congress specifically prohibits handing it in by private messenger or in person. But it seems pretty silly to say such a 'stamp mandate' is somehow so unusual and so hard on liberty that it's worse than prohibition....which people felt was so big a deal that they got an amendment to support it.
The Seaman Mandate and militia bill cited then are important not because they are exact analogies to the health bill mandate (or I should say alleged mandate since it's actually an income tax that pundits just call a mandate). They are important because they demonstrate that early Congresses were not shy about passing mandate type bills. They didn't see them as requiring exceptional justification or support Constitutionally. Mandates simply turn out to be rare for practical reasons rather than exceptionally high Constitutional barriers.
On “Categorical Imperatives”
If everyone did exactly the same thing, the human race would die out.
On “The Two Obfuscations of Obamacare”
Sounds like it, do you know any insurance company that cuts a 'foreever' health insurance plan? I would imagine as plans expire and new ones are created the choice would be either adopt one that meet's all the requirements or apply for a brand new waiver.
More importantly what exactly is the issue with waivers? Why should one get upset at the news that lots of waivers have been granted absent any other context? This is hardly the first law that has waivers as a feature, Medicaid and Medicare has lots of them and it seems they can be very helpful in providing some flexibility to try something creative without having to negotiate a new bill.
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Where's the redefinition here? If you're talking about the regulation of health insurance, that bridge was crossed a long long time ago.
On “Ronald Reagan and Hosni Mubarak”
Reagan very much supported sending grain. He accused Carter, who embargoed the USSR in reaction to its Afghanistan invasion, of using 'food as a weapon'
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The 'won the Cold War' narrative forgets too much history. Reagan's career was one large flip flop in regards to the Soviet Union. In the 70's the most dramatic development was Nixon's opening relations with China. This was premised on rejecting a major right-wing meme about Communism, namely that it was monolithic and so fundamentally at odds with freedom that co-existence was impossible. (Basically a lot of commentary by the low brow right in regards to Islam basically is taking the assertion and just changing the names around....'We are at war with Eurasia, we have always been at war with Eurasia!!')
The right is pretty good at pounding on an idea no matter how much reality refutes it (see supply side tax cuts), but sometimes when they actually have power they are forced to be realistic. Nixon, who was previously known for his anti-communism, took the opposite premise. The right was ballastic. They argued that you could see the Communist world was never going to cease war against the free world, just look at these quotes from Karl Marx! They argued that China and the USSR were very close, any 'splits' were just a ruse to con the US into thinking that we can play the master chess players in the Kremlin.... If only the US did more anti-communism, more playing up to anti-communist 3rd world dictators, more direct fighting, more arms buildup etc. Attempts to cast the world as a bit more complicated were mocked as niave...(including the idea that we might have other threats besides communism, such as, say, radical Islamic terrorists....as a side note, this is why Israel is an issue that crosses party lines. Back then Israel was a mixed bag when it came to the right. With its sometimes explicitly socialist gov'ts coupled with the fact that it made trouble for our relations with explictly anti-Communist but authoritarin Arab regimes like Saudi Arabia the right wasn't united behind Israel the way it is now. I can recall watching Jimmy Swaggart on the TV preaching if we 'just got out of Israel' we'd have no problems in the Middle East, ambivalence on Israel is clearly evident in some paleocons like Pat Buchann).
History, though, proved the right wrong. While theologically commited to a 'world revolution', communist governments had gotten quite comfortable with a status quo of co-existence with the west. The stock character from thrillers, the Russian official who parries with his Western counterparts here and there only to end the day sharing a drink of vodka with them and wax philosophical wasn't too far from the truth. If the US had surrendered to the USSR they probably wouldn't have known what to do with it. Likewise communism ceased to be monolithic. On the edge, client states didn't fear the heavy hand of Stalinism which was dead for decades. They became hungry demanders of welfare from the center (see Castro). In the core divisions were there from almost the beginning. We now know, for example, that the USSR and China almost ended up at war with each other and had multiple clashes where their troops fired on on another.
What's ironic about this is that while the right refused to believe this about communism, in a different context if you asked them what was wrong with communism they probably would have predicted it. A system that put so much power in one party or one man would almost certainly not remain true to any philosophical calling (like liberating the working class) but would instead seek first to expand their personal power and then seek to preserve the status quo. How could communism remain monolithic when all of history has shown any authoritarian Empire generates tremendous instability in the top leadership (see Rome & China)...
Anyway Reagan came into office as a right winger. Out with negotiations and arms treaties, those crafty smart Soviets always outwit our dull negotiators a the table! Try to engage Communism with hot and semi-hot actions at the edge (but then the spectre of Vietnam was still infuential, we'd have to wait till George W Bush before full international adventurism came back). And, of course, continue Carter's arms build up. And Dems more or less went along. Yea there was some back and forth on the details, debate about various weapons systems like the B1 Bomber and Mx Missile and later 'star wars', but the Dems controlled Congress and could have stopped Reagan in his tracks if they wanted too.
Reagan, though, did an about face with Gorby. Like Nixon, he reassessed the nature of Communism as it existed in the real world. He determined that the system inside the USSR might be able to mellow and reform itself after all. Negotiations started again, and just like with Nixon the right went crazy. Reagan was branded as a fool and a sell out (I recall reading a far right wing Catholic magazine my mom used to get, never be fooled that the left was mean to Reagan, no measure of mockery was spared for Reagan including using his wife's penchant for astrology against him). But the right was wrong, the USSR was changing for real (remember the right maintained till the end, even after the end, that the USSR was strong and had no real weaknesses....if things looked otherwise it was just well coordinated ruse to make the West feel too comfortable).
When the end came, I think it took everyone by surprise, including Reagan. But as people forget the facts the construction of a narrative begins. The narrative now is that the USSR was super strong in the late 70's and early 80's. Reagan, though, engaged in an arms race with them and that 'bankrupted' them....esp. when they saw that round II would be Star Wars which would be even more expensive than round I's more conventional weapons and nuclear missiles. At some point there's some fuzzy economic collapse and then communism is dead.
But this narrative doesn't really fit very well if you look too carefully. First of all North Korea shows us military states do not really go bankrupt. 80% of the population can be eating grass and the military will not get a single cut. Second, an 'arms race' needn't be that expensive since the entire premise of the Cold War was one giant bluff. The US builds 100 missiles. The USSR announces it will build 200. The right wing in the US helps the USSR by declaring the US is 'losing', etc. In reality the USSR claims to have built 200, only really built 130 and of those 60 at any moment are off line due to lack of spare parts or shoddy construction. Ironically in the US, if the claim is 100 missiles were built 100 were probably built and if 5 are offline due to shoddy workmanship the left and the media rakes the administration over the coals for its 'giveaways' to the defense industry. Basically the US has to spend real money on its arms buildup because of its free press and competitive political system. The USSR gets to bluff its way around it because they have a controlled press and no political competition. The arms race narrative only works in hindsight. At the time the right wanted an arms race because they saw a war with the USSR as inevitable. The problem with the narrative is that it's premised on a bluff that's never called. 200 missile silos appear like the USSR has won over the US, if neither side never actually launches anything from them.
More importantly if an aggressive military build up was all that was really needed to topple Communism then the narrative does a real disservice to previous history in the name of mythologizing Reagan. The US engaged in a massive buildup after the WWII demobilization ended. The US didn't just engage communism in bluffs but in hot wars in Korea and Vietnam that dwarfed anything Reagan did with Nicargaria or Grenada. The US was the first to build the hydrogen bomb, the ICBM, the spy plane, the nuclear sub etc. The narrative tarnishes the US by making believe the only time we were serious about military innovation was Reagan's Mx missile and Star Wars.
And likewise Star Wars was never much of an economic or military threat to the USSR. At best the US would have gotten a system that could take down 100-200 ICBMS for a few Trillion dollars. The cost to the Soviet Union to build an extra 200 ICBMs, peanuts. Likewise there's no reason to think the planers in the USSR wouldn't have viewed Star Wars like most previous innovations. They would let the US spend the serious R&D money and then get the weapons on the cheap by basically copying or stealing the designs from the US, that was basically how they got the nuclear bomb to begin with (Ohhh BTW, it's often forgotten that Reagan wanted to offer the USSR Star Wars technology for free....another reason the right wasn't quite so happy with Reagan the person versus the later Reagan the myth).
On “The Mandate Double-Bind”
It would appear then that the argument against using the commerce clause to mandate getting coverage appears to be generated from novelity. It's hard to think of other examples of Congress directly mandating the purchase of something therefore this must be some novel type of power which must be unconstitutional unless we can prove otherwise.
Necessary and proper, though, would move the test to the question of whether the general goal of the law (trying to get Americans covered) is a legitimate power in itself and then decide whether the particular law (mandating coverage) is both 'necessary and proper'. Necessary I take it would be a weak test, does the law reasonably relate to its goal....not whether it was the best of all possible laws that might be implemented to persue that goal. Proper may not have much added meaning here (sort of like "unusual" doesn't seem to alter the meaning much of "cruel and unusual punishments"....although a wit could read this as saying a punishment that was cruel but common wasn't banned!)
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Michael,
If I had to shorten this argument a bit, it sounds like the clause is saying if you have something that's a power of the Congress, Congress may pass whatever laws are needed to exercise that power.
To use an example, Congress may provide for the common defense. As a result it can pass laws traditionally related to this like establishing military bases, a draft, etc.
It can also pass unprecedented laws should it be necessary to 'common defense'....like a law saying that all who die need to be shot in the head and burned.....a sensible law if we are facing a zombie attack.
If Congress has the power to ensure health coverage, then laws related to that are permitted provided they don't bump into other clauses. If it's illegal to require people to buy coverage then it would also be questionable to provide it directly to them as in the case of Medicare for the over 65 group.
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"Namely, that the President of the United States and his political coterie would – to get the bill through Congress – insist that the mandate is not a tax and then turn around and argue for its legality on precisely that proposition."
This may be why we are in such a rhetorical bind right now. The 'mandate' as it exists in the bill is an income tax, not a real mandate....yet the administration is arguing that a real mandate is perfectly ok in terms of the interstate c'mmerce clause. Why?
Well here's the President way back then arguing that it wasn't a tax:
http://blogs.abcnews.com/george/2009/09/obama-mandate-is-not-a-tax.html
Note several things:
1. His argument isn't really a direct "this is not a tax" but a kind of indirect "it's a tax but when you put it together with these other good things it's really not". Technically if you have A that raises taxes $100 and B that lowers taxes $100 you still have to say A is a tax incrase....but rhetorically you don't say that unless you want to get jumped on politically and 'soundbitten' to death.
2. No one really buys it. George Stephanopoulos, supposedly a representative of the liberal MSM, seems pretty much on top of the idea that it was a tax in the interview and presses the issue as hard as he can.
If even George Stephanopoulos saw it as a tax then the people who are really bending reality are those who now trying to assert it's a mandate. But if courts are to pay attention to legislative intent....well you have everyone back then saying it was a tax. Even the President was saying it was a tax by choosing to answer the question in such a convoluted manner. If he didn't he could have been more straight forward, "No it's not a tax, its a fine for breaking the law! No different than when the FDA imposes a fine on a company that sold tainted milk!"
On “Bachmann, Burr, and Patriotism”
Reagan was not 'loved' when he was in office. He was a politician like others, his approval rating went up and down and various people on the left and right sometimes supported him, other times didn't. He became 'loved' in retrospect (Kennedy's name went through something quite similiar).
If you were alive in the Founders age, you'd probably see them as politicians with their agendas, flaws and all. All this petty stuff gets forgotten about with time and the mythic view takes hold. The premise of Vidal's book and Bachmann's issue with it appears to be that the book doesn't celebrate the generation of the myth but instead tries to get at the truth. The problem with defending a lie, though, is that you can't just say it point blank. You can't just say "we are better off believing the myth than the truth" because once you say that you're no longer believing the myth but just pretending too.
On “The Mandate Double-Bind”
I would say that torts are a bit more complicated because sometimes you have two different sides that honestly disagree over how to read a contract or over the facts of a case. Maybe I'm not paying you because I think you failed ot fulfill your side of the bargain, you think you did, we go to court to decide. Other times, though, I'm not paying because I don't want to or I don't have the money. We go to court so you can get a judgement. Legally I'm in the wrong which is why you win your judgement.
Ethics here are maybe too strong. It's perfectly ethical to ignore unethical laws IMO. So maybe imagine the law as a little voice in your head that says "You shouldn't do that". When you come to a stop sign and no one is around the voice says "you shouldn't run it". Sometimes, though, the voice expresses an option. Take out of your 401K early? The voice says "I'd rather you didn't". This conversation happens between you and a voice that represents the state. Torts are a bit different in that they are you versus other people or things where the courts decide the case. The state doesn't care if you stiff your brother-in-law on the $1200 he loaned you. The state simply provides a forum where this dispute can be heard between you two. But fundamentally it doesn't care in the legal sense. That's why your brother-in-law has to do all the work in filing suit against you etc.
BTW, the case of the overdue library books is pretty vague. On one hand you can view it as a 'rental fee' that just calls itself a 'fine'... or on the other hand it really is a rule. You are supposed to get the book back in two weeks. The $0.10 a day isn't an optional fee but a punishment for violating that rule. This isn't totally irrelevant as some towns issue warrants for people who screw the library over big time.
Anyway, in the bill all the language you cite are about what is required to avoid a particular income tax. This is evidenced by:
1. A 'penalty' in the tax code. As pointed out penalties in the tax code are almost always about areas where you have a choice. There's nothing in the bill to indicate this is any different.
1.1 The fact that the 'requirement' is income contingent also indicates that this is a tax. Laws of the type you are talking about usually apply universally, not so contingently. Granted laws often have exceptions (no one may drive over 50mph unless they are driving an emergency vehicle in an emergency), but they are often directly related to the laws purpose (provide for safer streets). A 'punishment' that hits you with a sliding 'penalty' paid to the state based on your income is generally called an 'income tax'.
2. The lack of enforcement beyond the tax code. Granted a state can pass a law without passing any real punishment, but since a criminal act is a serious thing I'd expect some real evidence that is what passed in this bill. If we were getting a lawyer debarred for advising a client ot skip insurance and pay the penalty he would mount a pretty serious defense on those grounds. Since the bill also specifically states that the IRS may NOT use the gov'ts criminal justice tools against those who don't pay or don't get insurance this would be cited as evidence that Congress was not passing a law against not having insurance coverage but creating an income tax penalty for not doing so.
On “Bachmann, Burr, and Patriotism”
I should also add that quite frankly women were not taken seriously in the 70's and before. This is pretty obvious when you look at a lot of the media from the time and before. Liberalism and Feminism were not one in the same despite what conservatives like to think. Many 'good liberals' in the era were had pretty crappy views as far as feminism was concerned and it took some serious culture wars into the 80's before serious change happened.
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First, my 'apology' is, of course, sarcastic. I don't really see why anyone on the left should feel the need to apologize for Polanski anymore than the right need apologize for anything they didn't specifically do.
Second, if you have a beef with specific people who have argued the case for Polanski then take it up with them. "Hollywood" and "Liberals" here exist here as props for your attempts to forment class warfare. And do we really need that?
Third, to the degree that Polanski had a lot of defenders, I think the relevant factors at work ere:
* Sympathy for him considering the horrible way he lost his first wife to Manson's 'family'.
* A very different atmosphere in the 70's where sex had been liberated but not women. Hence the very casual way underage sex was approached...note how light the original deal appears in today's light. Most of us weren't very mature then but you can get a sense of the different attitude by some movies from the period. Note, for example, Taxi Driver features Jodi Foster playing a 12 yr old prostitute! But even less artistic movies like Freebie and the Bean casually has a side character who has a 14 yr old 'girlfriend' in bed with him at his apartment. The cops let him go when he gives up some info, making the whole underage thing seem like some minor technicality.
* Some people did get into the case and were honestly convinced the judge and prosecutor were not behaving correctly in the case. I can't comment so much about that since it's not anything I really care much about.
Now what does this have to do with Vidal's book? Not much that I can see. The one time I ever bothered to listen to Gore Vidal at length was when he was a guest on Bill Mahr's show (I was aware of the famous blow up between him and Buckley). He seemed pretty pompous and uninteresting to me....that he might have been jumping to conclusions and being pompus 40 years ago isn't very important. We could just as easily jump all over Bill Cosby for falling for Al Sharpton's Twana Brawley case.
On “The Mandate Double-Bind”
Actually I do believe that. Required does not mean 'mandated by the laws of physics'.....if it did, though, what are you complaining about? By that standard the law can't require anyone to buy insurance unless it somehow altered the laws of nature to make it physically impossible not to have insurance in the manner that it's physically impossible to travel faster than light. If you want to push that as the meaning of required then I win the argument by default. I'll be a gentleman, though, and won't take the easy kill shot....
Required means in the context of law that you must do something. I am required to submit a tax return (provided I meet various criteria). I am required not to murder anyone. I am required to keep my speed below 50mph on certain roads. I am required not to knowingly write bad checks. I am required to park my car in a legal parking space.
These things the law requires of me in that if I am to be a law abiding citizen I must follow them. Now some people take that very seriously and are always law abiding citizens, others do not care about it at all and most are somewhere in between. When you break the law you are no longer a law abiding citizen. A different question is what happens when you break the law. The law has various punishments prescribed ranging from nothing to very harsh.
Now the important thing here is:
1. Just because there may be no punishment, it doesn't mean its 'ok' to break the law. The town may not say you must collect the election signs you put up 24 hours after the election. The town may not have bothered to set in place a fine for failing to do that. That doesn't mean it's legal to leave the signs up. It's not. If you don't collect the signs you littered the town with then you are breaking the law. Maybe you don't care, so don't, it still matters from a legal POV. Hence my question about the lawyer. As the lawyer's obligated to not advise people to break the law, he cannot advise the campaign to save money by not bothering to collect the signs after election day.
2. Fees != Punishment. As I said, you are obligated to follow the law. That means that when a law has a set of punishments for breaking it, that's not a menu of 'fees' or 'prices'. You aren't free to drive faster than 50mph on a certain highway, period! If the fine for speeding is $50 that doesn't mean you can 'buy' the right to speed by just paying the fine when you're caught. Some things, though, are treated as fees. "No Swimming, $50 fine" and "Town Beach, membership fee $50" are not the same thing even though an economics minded person who cares only about cost may see them as the same. The first you are required not to swim there, the second you may swim there at a cost of $50.
It makes sense then to note first that the way we have used the word 'penalty' up to now in the tax code has mostly been in the manner not of requirements but options. There's tax penalty for taking money out of your 401K early, but you aren't required by law to keep your money locked in your 401K until you're old. If you must have an objective definition of penalty it seems that a penalty is:
A. A tax.
B. A tax that's optional in the sense that the law gives you a practical way to avoid it if you want (I say that because while technically you can say you can quite working and earn no income to avoid the income tax, it's not practical therefore the entire income tax itself isn't really a 'penalty').
C. Often the behavior the incurrs the penalty is something the gov't is NOT making illegal but would rather you not do (i.e. taking money out of your 401K early, if the gov't really wanted to say you were required not to do that it could just require banks and financial firms to never disburse 401K's early)
If this is a requirement in the legal sense you take it to mean it's a rather odd 'punishment'. For one thing you are only 'required' if your income is at a certain level. Most requirements in the law are not contingent on your income, for example. But if it's a requirement to avoid a tax penalty, more specifically a requirement to avoid an income tax penalty (power clearly given to Congress...to tax income) then the 'oddness' disappears and it fit's reality like a well worn glove. You're argument doesn't fit so nicely. We would require a whole bunch of linguistic tricks to explain why numerous deductions, credits, and penalities for lots of other things in the tax code would also not be struck down OR we would have to adopt a whole new way of reading the Constitution's power to levy income taxes....a way of reading that not even it's author's seemed to hold. So if the glove don't fit, you must aquit!
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Again applicable individuals are not required to do anything. To be required to do something means you must do it. There's no options, no choices, you must do it. In the context of that section of the bill, however, the person is required to do something to avoid an income tax of about $750 or whatnot.
This is why you refuse to address the question of whether or not a lawyer could ethically advise a client to not get coverage and just pay the penalty. You won't address it becaue it demolishes your argument. If the bill required people to get coverage then any lawyer who advised his client to not would be breaking his code of ethics. He would be subject to being disbarred. But no lawyer, no CPA, no professional who must stake his license and career on staying within the law is afraid of advising their clients to not get coverage and just pay the penalty. Since no such requirement exists in the law, such a client would be no different than a client who didn't want to donate to charity. The answer would be simply "don't donate, your income tax will be higher because of that".
Your argument can only be saved by arguing that the power to have an income tax requires that the only provisions involve things relating to income and only income.
*Comment archive for non-registered commenters assembled by email address as provided.