Al's Opinions

Leslie Stahl interviewed Justice Antonin Scalia tonight on the program SIXTY MINUTES. The judge comes across in the interview as a pleasant, likeable fellow who loves an argument. He knows that his opinion is the right one and smiles when he says it. Clearly he expects an attempt at rebuttal.

Anyway, leaving aside his personality and his personal friendship with people with whom he disagrees, I believe he has a mistaken idea of the federal constitution. To him the constitution is not a "living" document. It is a "dead" document, and must be interpreted according to the original meaning of the words and the language at the time each part of the constitution was adopted. He is, in his own words, an originalist, or one who believes that the original intent of the writers is the compelling interpretation.

I beg to differ. My father used to tell me that the constitution is a means to an end, not the end in itself. It is a means to achieve a more perfect union and an effective, representative government. The constitution should be reinterpreted in terms of what the framers would decide now, if they were somehow magically brought back to life. The framers were practical men. If they were alive now, there would be some women among them. Justice Scalia himself stated that the opening phrase "We, the people" had a different meaning in 1787 from what it has today. The phrase would not have included Leslie Stahl, or any of the slaves then living, or, in fact, anyone who did not own property.

To be fair, Justice Scalia believes that change in our way of life, our values, etc., should take place by State legislatures enacting laws. The constitution has no reference to abortion, homosexuality, or gay marriage. If a State wants to legalize gay marriage, it can do so. If a State wants to permit, forbid, or regulate abortions, it can do so. If it wants to permit or punish homosexual behavior, it can do so. To extend what I believe to be his philosophy, the federal courts should not be viewed as the last refuge of persons seeking an end to unfair and discriminatory treatment, except in so far as various amendments have been adopted to assure that every man and woman has the right to vote, has the right to free speech, etc.

It seems to me that an important consequence of Justice Scalia's thinking eliminates the legal principle of precedent, or stare decisis. Most legal scholars believe that a previous decision by the Supreme Court has the same legal standing as the constitution itself. The court interprets the constitution for the rest of us. To Scalia, a wrong decision made by the court ten, fifty, or two hundred years ago is still wrong and should be reversed. Actually, I should say a decision he believes to have been wrong should be reversed.

Mr. Scalia is an entertaining and likeable fellow. However, I would not like to have eight other justices just like him on the Court.

Labels: 60 MINUTES, abortion, Antonin Scalia, gay marriage, judicial precedent, Leslie Stahl, original intent, Supreme Court

The conventional news media and the bloggers are busy today writing about the New York Times article that deals with a relationship between John McCain and a female lobbyist a few years ago. The implication is that McCain was:

1. having an affair with the woman;
2. granting special favors to her clients;
3. risking his image as a squeaky clean legislator and not like the rest of the womanizing crooks that infest our national legislature.

Senator McCain has denied these implications with a simple response: "NO."

Some McCain partisans imply that the New York Times, a liberal newspaper, made up the story just to embarras McCain. They see a liberal plot to "swift boat" McCain.

The "swift boat" charge uses a poor analogy. John Kerry presented himself as having done something heroic during his service in Viet Nam. The swift boaters attacked and tried to disprove and discredit his claim as a war hero. The implication of the NYT story has no bearing of McCain's service during the Viet Nam war. A better analogy would be to liken the story to stories published during Bill Clinton's Presidency of his dalliances with various ladies.

My own reactions to the story are:

1. It probably is factually correct.
2. McCain is correct in denying an intimate sexual relationship with the woman.
3. Even if he had such a relationship, it has no bearing on his ability to handle the job of President. We have had many Presidents who had relations with women. These relationships did not detract from their abilities to lead this great country.

Regarding item 3, we must remember that it requires a person of extreme ambition and desire, as well as ability, to get as close to the Presidency as John McCain, Hillary Rodham Clinton, or Barack Obama. Persons with these extreme characteristics are apt to have very strong sexual desires as well. We should not be surprised or shocked or even put off by stories of sexual adventures by those with the ambition and ability to lead us. We should not put a President on a pedestal and worship him or her as a role model for our children. Next November we will elect a President, not a saint.

I defend and excuse John McCain for any affairs he may have had or may be having. I admire his short answers to the reporters who quizzed him about the implications of the story. I still won't vote for him. If he becomes President, he will almost certainly continue Mr. Bush's program of loading the federal courts with ultra-conservative judges and justices. If McCain becomes President, Roe v. Wade will be overturned after he appoints a successor to John Paul Stevens, the oldest member of the present Supreme Court.

Labels: Barack Obama, Bill Clinton, Hillary Clinton, John McCain, John Paul Stevens, President as a role model, Supreme Court, swift boating, womanizing Presidents, Womanizing Senators and Representatives

The "compassionate" Republican plan to provide health care to all Americans involves mandating that everyone buy health insurance, preferably from private, for-profit insurers. The Republican analysis seems to go like this: since forty million (or more) Americans don't have health insurance, make it a legal requirement that they get health insurance. Apply the same principle that works with auto insurance: require everyone to have insurance. Problem solved.

Of course, not all Republicans think like the late Milton Friedman, who once famously declared to his class of graduate students that there are no poor people in America. Governor Schwarzenegger (California) and former Governor Romney (Massachusetts) have both put forward health care plans in which the central ingredient is to require everyone to buy insurance. They recognize that some people are so poor that they can't afford the premiums. In their plans there are provisions to subsidize insurance for low-income people.

Governor Schwarzenegger also recognizes that insurance companies tend to charge high premiums or even refuse to provide insurance to individuals with expensive medical problems. He proposes to get around that plan by requiring that insurance companies insure everyone, or anyone who applies, regardless of any existing medical condition. I have not read his plan, so I do not know if insurance companies are required to charge the same premium to everyone, or whether, as they have from olden days, they first give you a physical examination and then determine the premium from the result of the exam.

If I were an insurance company and were required to sell health insurance to everyone, I would want to be able to charge a very high premium to a client who seems to be close to death. I would insist that it is my constitutional right to do so. No State, no Governor can require me to operate my business in a way to lose money. I'm sure the present Supreme Court would sympathize with me and decide the case in my favor.

So much for any legal requirement that insurance companies insure anyone who applies, regardless of his or her medical condition. More especially, so much for requiring that insurance companies apply the same premium to everyone. Insurance companies are going to tend to select the healthiest patients. Sick patients are going to tend to select insurance companies that charge the lowest premiums. The Supreme Court isn't going to allow States to mandate premiums or choice of patients that require insurance companies to operate at a loss.

The Republican plan for universal health insurance is an example of a solution to a very complex problem that is simple, inexpensive, and wrong.

Labels: Auto insurance metaphor, Republican plan for health care, Supreme Court, Universal Health Insurance