A.J. DiCintio
Conservatives citing emanations and penumbras?
By A.J. DiCintio
September 3, 2011

Despisers of judicial activism — whether it is practiced by conservatives or liberals — have plenty of cases to choose from when they wish to exemplify the constitutional and intellectual madness of the thoroughly anti-Jeffersonian construct.

For instance, they can cite the majority opinion in Roe v. Wade, a work whose sordid metaphysics ranks it beside the rottenest prophesies croaked by ancient augurs and the most revolting pieces of mumbo jumbo spewed by medieval divines.

Indeed, the opinion eminently deserves to be included in such putrid company; for in one fell swoop it perverts the constitution, its history, intellectuality, semantics, and the principle of common sense federalism as it asserts that "emanations" radiated by words of the 14th Amendment's Due Process Clause create "penumbras" which speak of a right to abortion flowing from an undefined constitutional "right to privacy."

Then, to make miniatures of the labors of augurs and medievalist frauds alike, it informs us the penumbras have more to say — specifically, not just that the state has an "interest" in pregnancy but exactly on what day of a pregnancy that interest supersedes what has come to be known as a woman's constitutional "right to choose."

Such thoughts about judicial activism usually come to mind after Justice Anthony Kennedy and the Supreme Court's four power crazed liberals have conjured up yet another decree whose dictatorial ugliness they attempt to hide with the deceitful cosmetic that argues they have simply interpreted the Constitution in a manner that brings it into harmony with "evolving standards of decency that mark the progress of a maturing society."

(To expose the autocratic nature of that fetid lie, we need only consider that the Court's activist liberals have long been prepared to rule the death penalty unconstitutional — despite the fact that the Constitution explicitly acknowledges the penalty as appropriate and a majority of the American public has supported it with remarkable consistency.)

Sadly, however, they arise today because of statements made by two conservatives.

Specifically, Michele Bachmann, who said this to CBS's Bob Schieffer:

"I think [a mandate requiring individuals to purchase health insurance] is unconstitutional, whether it's put into place at the state level by a state legislature or whether it's put into place at the federal level."

And Rick Santorum, who had this to say in the Iowa debate:

"This is the 10th Amendment run amok. Michele Bachmann says that she would go in and fight health care [insurance] being imposed by states. . .but she wouldn't. . .fight marriage being imposed [sic] by the states. . ."

Since both Bachmann and Santorum agree the Constitution forbids states from mandating the purchase of health insurance, let's examine whether that position comports with the most fundamental question a conservative should ask when confronted by a problem regarding federalism:

"Does the Constitution explicitly deny the power in question to the states?"

With respect to the issue at hand, the Constitution contains no such prohibition. Therefore, a conservative who argues it does must, ironically, engage in the kind of "thinking" that gives rise to the liberal Doctrine of Emanations and Penumbras.

Regarding the nation's healthcare cost problem, the following questions are of additional importance to conservatives:

. . . In the absence of a mandate, how it is possible to prevent freeloaders from causing substantial harm to the nation's health industry or ruin it utterly?

. . . Does the absence of a mandate encourage or actually guarantee an explosion of undeserved welfare or, to put it another way, the kind of rampant entitlement mentality that, even post-Thatcher, is threatening the fabric of British society?

To be sure, the argument over health insurance mandates is but one of many excruciatingly difficult problems facing any person who proposes an honest reform of the nation's entire healthcare system.

In fact, that political reality was exemplified recently when, on Fox News, Congresswoman Bachmann, aware of letters coming in to virtually every Member of Congress 100-1 against making changes to Medicare, conspicuously repeated the words "crystal clear" as she mentioned that no Republican proposal will affect the program for current seniors or citizens approaching retirement.

However, as MSNBC's Dylan Ratigan put it so well recently regarding federal spending and debt (in a statement the popular media has sadly but predictably diminished with the term "rant"), the cost of healthcare in America is ultimately not one of opinion but of "mathematics."

And the numbers tell us total U.S. healthcare costs are projected to significantly outpace GDP growth and amount to at least a shocking 19% of GDP by 2019.

To avert a disaster that threatens the nation's financial and social stability, numerous reforms of the healthcare system will be necessary, one of which, for moral and pragmatic reasons, is that every American ought to pay some part of health insurance premiums as well as be required to pay out of pocket healthcare costs in an amount sufficient to insure that every citizen who gets medical treatment is fully invested in the work of keeping healthcare costs down.

If a conservative has an idea for making medical insurance sustainable, affordable, and fair without mandating its purchase, the person ought to promote it forcefully in the context of an entire healthcare fix.

But whatever their proposals, people who wisely profess to abhor liberalism ought not do their part to destroy a lot more than federalism by advancing arguments requiring the belief that emanations radiated by words and the penumbras they create have the power to tell us (with thanks to Keats) all we know on earth and all we need to know.

© A.J. DiCintio


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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A.J. DiCintio

A.J. DiCintio posts regularly at RenewAmerica and YourNews.com. He first exercised his polemical skills arguing with friends on the street corners of the working class neighborhood where he grew up. Retired from teaching, he now applies those skills, somewhat honed and polished by experience, to social/political affairs.


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