Thursday, July 5, 2012

What is the Common Good? Why the Supreme Court's Ruling on Obamacare is an Opportunity for a National Civics Lesson

In civics class we learn that federal courts decide whether laws passed by Congress and the state legislatures are constitutional. Therefore the federal courts are the guardians of our Constitution. That is certainly true, but it not the whole story. In fact, the most important function of the federal courts is to legitimate state building by the political branches...


As expected and fitting given its importance, the Supreme Court decision upholding the Affordable Care Act (the "ACA" or what conservatives have derisively labeled "Obamacare") has generated much national discussion. For all of the partisan hackery, hysterics, bloviating, right-wing madness and appeals to a Civil War, as well as orgasmic histrionics, there are some really smart people, who are saying some really smart things about the Supreme Court's decision--and what the debates surrounding the Affordable Care Act tell us about American politics and political culture.

[There is so much good stuff out there on this issue; please do send in your reading suggestions as well.]

The Supreme Court's decision upholding the ACA is a lightning rod for the deep divides of party and ideology in the United States where one person's belief that it is reasonable, long overdue, and ethically justified to provide a modest extension of the social safety net through the ACA, is another person's tyrannical decision by "big government" to usurp their individual rights and liberties. These fractious moments--if folks can get past the yelling and reason interfering with emotion--are actually opportunities to conduct a national civics lesson.

In school, we all should have encountered such concepts as federalism, the social contract, tacit and active consent, separation of powers, tyranny, negative and positive freedom, and liberty. Hopefully, we all read the Constitution, The Federalist Papers, The Second Treatise on Government, and the Bill of Rights. If we had good teachers, they explained that these were not just empty words and ideas. They were part of our political common sense and form a taken for granted set of guidelines for American democracy that influence our culture to the present.

In the aftermath of the Court's ruling on the ACA, it is nice to see these first principles and concepts creeping back into our public discourse. As I often signal to whenever given the opportunity, an appeal to the social compact (we have an obligation to one another in political community and society; there is a bargain of rewards, burdens, and obligations which citizens have subscribed to) should be central to how we make sense of our present, and in many ways much exaggerated, divides of ideology and party. 
Writing for the Atlantic, Jack Balkin, of the Yale Law School, signals to this all too overlooked concept (and also gives a nice lesson in American political development) as he details how:
Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract...

But the important point is that, here again, Roberts is both legitimating and redefining the new social contract in a more conservative way.
While partisanship is used to divide us into camps, the American political tradition, with a few quite notable exceptions (the Civil War; a Tea Party Ayn Rand Conservatism that is extremely radical and prone to overturning long-standing standing political bargains), has been governed by a type of consensus liberalism. Simply stated, because of how voting is structured in America's style of representative government, the major political parties in the modern era have tended to be more alike than they are different.

There are notable and substantive differences between the two parties. But, these differences are often exaggerated and used by elites, and the pundit classes, for immediate and personal gain by motivating the masses to do their bidding. Core American values are not immune from these manipulations. The use and abuse of American exceptionalism, what is a cultural myth and a necessary lie, is one such talking example.

Working through the power of this political intoxicant, and how it has been skillfully marshaled by conservatives as a cudgel against their foes through appeals to crude nationalism and ugly populism, Salon's Is America More Exceptional Today than in 1776? skillfully triangulates American exceptionalism with the health care debate:
We Americans misconstrue a lot in presuming that we know what 18th-century men thought about when they invented a nation that was joined to the transcendent value of human liberty. The founders’ vocabulary was different from ours. They invoked a word we don’t use much anymore – magnanimity – when they spoke of the generous concern meant to underlie the relationship between individuals, or between the government and its citizens. The new republic was to advance social harmony, which unequal governments (monarchy, aristocracy) did not...

It almost sounds as though, in affirming Americans’ rights to happiness and security, Jefferson was promoting universal healthcare for citizens. Fairness, the voice of justice, magnanimity – it sounds like the progressive script in 2012. The moral impetus is inherent in the language of the Declaration, but government has to balance the practical against the good. As in 1776, Americans today are still asking: What should government do in order to provide comfort to those it governs? What should it not do? When does magnanimity become too much government?

For Thomas Jefferson, America did not become exceptional on July 4, 1776.  He and the other founders attached themselves merely to the promise of what America could become as a nation distinct from others. Exceptionalism was certainly not automatic, which is what today’s Republicans overlook when they attack President Obama (as Romney is wont to do) for not believing ardently enough in exceptionalism. It has become like a religious test – which, incidentally, Romney should be sensitive to, given that the Mormons of the late 19th century, prosecuted for the practice of polygamy, invoked the name of Thomas Jefferson in praying for inclusion in the American community.

The founders were not bewigged prophets. They did not grant posterity something called American exceptionalism on July 4, 1776. They were fighting a war, and they needed to define their purposes convincingly – in part to attract political recognition from the greater nations of Europe.
The pragmatic nature of the origin myth known as American exceptionalism is often forgotten. Just as in the intellectually empty phrase "support the troops," citizens are socialized into thinking uncritically about the claim that America is unique, special, and endowed with superpowers and special responsibilities relative to the other nations of the world.

Unfortunately, a belief in American exceptionalism has become a quasi-religious litmus test for American elected officials.

Conservatives and liberals hold on to different core fictions necessary to sustain their political narratives and beliefs. They reproduce and share these stories in order to create a sense of shared values, meaning, and culture.

As recent research has suggested, differences in political values are also biological and rooted in brain structure. Conservatives, in particular the petit authoritarian variety common to the Tea Party GOP of today, quite literally see the world (including the realm of facts and reason) differently than progressives, moderates, liberals, or traditional Republicans of the near recent past. The divergent responses to the Affordable Care Act, and the Court's decision supporting its constitutionality, are examples of these deep divides in political worldviews and values.

As I have pointed out on a number of occasions (and will not go into in great detail again here), the Right's response to the Age of Obama is a function of naked racial hostility, tribalistic White nationalism, and a crude version of Ayn Randian libertarianism which is legitimized by a twisted brand of Christian Evangelicalism and End Times Dominionism-Eschatology in the guise of a political death cult.

This is near sociopathic behavior that is premised on a strict divide between "us" and "them," "those people" and "real Americans." In all, I would suggest that the debate about health care reform in this country is ultimately about the primacy which should be afforded to an ethic of care and concern in American society--and the role of the government in balancing and following through on such values.

However, could the Right's rage at "Obamacare" and extending the social safety net in the interest of basic human rights, also be rooted in deeply historical divides of region, race, and identity shared by the New Right, the Tea Party GOP, and the country's plutocrats?
Sara Robinson would seem to think so. Her essay, "Conservative Southern Values Revived" argues that the odd mix of vicious intolerant populism and plutocratic zeal that is the contemporary Republican Party, is really a reflection of how the descendants of the Southern slaveocracy and planter class now have an outsized influence on 21st century American society and culture. She writes:
In the old South, on the other hand, the degree of liberty you enjoyed was a direct function of your God-given place in the social hierarchy. The higher your status, the more authority you had, and the more "liberty" you could exercise -- which meant, in practical terms, that you had the right to take more "liberties" with the lives, rights and property of other people...

When a Southern conservative talks about "losing his liberty," the loss of this absolute domination over the people and property under his control -- and, worse, the loss of status and the resulting risk of being held accountable for laws that he was once exempt from -- is what he's really talking about. In this view, freedom is a zero-sum game. Anything that gives more freedom and rights to lower-status people can't help but put serious limits on the freedom of the upper classes to use those people as they please. It cannot be any other way. So they find Yankee-style rights expansions absolutely intolerable, to the point where they're willing to fight and die to preserve their divine right to rule...

From its origins in the fever swamps of the lowland south, the worldview of the old Southern aristocracy can now be found nationwide. Buttressed by the arguments of Ayn Rand -- who updated the ancient slaveholder ethic for the modern age -- it has been exported to every corner of the culture, infected most of our other elite communities and killed off all but the very last vestiges of noblesse oblige.

It's not an overstatement to say that we're now living in Plantation America. As Lind points out: to the horror of his Yankee father, George W. Bush proceeded to run the country exactly like Woodard's description of a Barbadian slavelord. And Barack Obama has done almost nothing to roll this victory back. We're now living in an America where rampant inequality is accepted, and even celebrated...

There are several basic questions which tie together my to contextualize the debates surrounding the Affordable Care Act, and the broader political moment of which they are a part.

What is the Good Society? Once we answer this question, we must then ask two related ones. What is the Common Good? How do we understand the Social Compact?

In turn, our answers to these questions will explain the wildly different responses that populist Right-wing conservatives, progressives, and moderates have to the Affordable Care Act. Perhaps, despite a shared political culture, Republicans and Democrats do in fact reside in radically different social, political, and historical realities.


Shady_Grady said...

Conservatives and Liberals do reside in different worlds on some issues but it is a matter of no small irritation that so many liberals simply don't seem to understand that there is a principled libertarian opposition , which transcends left/right labeling, to being told that one MUST purchase a private product.

As was written elsewhere sometimes liberals get so caught up in the moral ideas of compassion and equality that they forget all about freedom.

See Harrison Bergeron...

chaunceydevega said...

@Shady. You know how I feel about libertarians. But, your point is taken.

Be more specific, how do you balance freedom from vs. freedom to?

Libertarians and conservatives have a very negative view of freedom where the State can never be seen as enhancing a citizen's freedom. Thus, their opposition to civil rights laws because they limit the freedom of whites to discriminate. Funny thing, the freedom of non-whites to live a life free of racial bigotry and its consequences is rarely discussed.

Re: health care I would suggest that there is much positive freedom to be had by having access to basic healthcare and not going bankrupt from breaking a bone. Social security can be seen in much the same way, knowing that the elderly will have some basic level of care is freedom from the fear of having to be destitute in old age and dependent on charity and/or living on the street.

How do you find that balance as a practical matter? Let us not forget that the pursuit of compassionate government and equality in society can actually enhance freedom. Always question the premise.

Comrade Physioprof said...


I didn't read the Salon piece, so I don't know if it addressed this issue, but all the founder's "magnanimity" was broad enough to tolerate chattel slavery. In that way, we truly were exceptional in 1789: the only nation to have ever guaranteed the right of slave owners to own slaves in its founding constitutional document.

chaunceydevega said...

@Comrade. Zing...would the territorial governance documents--whatever they would be called of Barbados, West Indies, etc. count? Or Brazil?

Anonymous said...

The SCOTUS ruling kept them in the game and leveled the playing field no longer is our nation governed by just two branches ( Prez & Congress)..

Of equal importance is the ability of states to push back against unfunded mandates driven by the central government( medicaid programs can now be rejected by state's without the threat of sanctions)

Finally conservatives are correct the indivual mandate is flawed and not consititutional it made no sense to construct this paradigm with this mandate...This is a terrible construction of such a sweeping universal health care idea one wonders why the president even allowed for this provision...WTF

Tom said...

Shady it is massively tiring to be told again and again and again how liberals don't "understand" the Libertarian outlook. We understand it fine. The problem you're experiencing with us is one of disagreement, not ignorance.

The claim that what you want "transcends" left and right goes beyond that tiring error and right into either extreme naivete or outright untruth.

Shady_Grady said...

That's funny Tom because that is exactly the way that people who are opposed to the mandate feel. Many mandate supporters do not have any sort of real constitutional or legal limiting principle to why it is a permissible or progressive position to be forced to purchase a product from a private entity.

All they do is bleat "Well if you're opposed to the mandate you want people to die" which is not exactly a stance designed to engender reasonable debate.

I consider myself a progressive with strong libertarian tendencies. Believe it or not we do exist. But there are people across the political spectrum who are opposed for a variety of reasons to the mandate. So despite what you may have been told there are elements on both left and right who do not find mandates congruent with either personal freedom or constitutional limits. Sorry to burst your bubble but people that disagree with you are not, by definition, liars or stupid.

Shady_Grady said...

I am actually working on a piece about just that balance Chauncey and hope to post it this week (Monday or Tuesday).

I think there are ways that were constitutionally permissible and indeed more effective than mandating health care purchase.

For example, single payer or a new program that was just for unemployed/underemployed. That would have done the same thing without claiming the right to tell me what I must do with my (after tax) dollars. Generally speaking, I don't like people telling me what to do. Period. =)

Synonymous said...


WTF indeed. That's what I said when he allowed/put it there. It's there because the president wanted it there. That was the moment he revealed his true treacherous colors. The mandate was what the corporations wanted. The corporations' president delivered. And now the corporations' supreme court judge delivers. Anybody remember Obama saying single payer is off the table? The Corporation Man.

Anonymous said...

What a great analysis of the current climate. I believe in universal healthcare. I'm on the front lines with the homeless and people with disabilities and people are suffering greatly. Obama couldn't get universal through so he smartly went for a modest, conservative plan. Something is better than nothing.

Synonymous said...

We don't know if he could have gotten it thru; since he didn't try. He had already cut a deal with the insurance corporations before the hearings began. Look it up.

"Something is better than nothing." Not always. We are just beginning to discover how crappy the ACA is. But hey, that's the kind of result you get when your standards are so low.

chaunceydevega said...

@Shady. Looking forward to that essay. You/me/us are taxed in many ways small and large. You are practically being limited and told what to do everyday with your after tax dollars anyway. If you drive you need auto insurance; same deal here for all intents and purposes.

Sad truth. We are all paying for the uninsured anyway. Best, to find a way to get some kickback to the system. Also, I hope this is the case for you, are you one of that extremely small percentage of people who can afford to buy insurance and choose not to?

If so you must have some serious bank to be in the category of those who will have to pay a very minuscule 1 percent tax.

I would have preferred single payer. That isn't going to happen yet. The poor have many more subsidies than the middle and working classes. These two latter groups are the ones most imperiled by out of control health expenses. Don't get me wrong this is ultimately a human rights issue.

Synonymous said...

That's utterly absurd. No wonder the right wing is winning. Even our left is right. Chauncey, the people who have already been thrown under the bus do not have it better than the middle class, the people who are about to be. There is an elitist subtext to your posts lately. And as usual, Barama is blameless for this fiasco. Look, man, you have what you voted for. And you are about to vote for it again.

fred c said...

Professor, I'm with you on *we're already paying for it *I'd have preferred single-payer *the poor are already subsidized *the imperiled middle class, and *the human rights issue thing. Seems plain enough when you think about it.

No "but" forthcoming. You just keep on doing what you're doing, and don't let the Asshole Choir get you down. There's not an ounce of elitism in your style, if you wrote it up for a paper it would look entirely different and it would be much, much harder to read.

Don't respond, people will think I'm just flattering you to make points, an absurd notion that has come up from time to time. Believe me, if I wanted to be loved by Black folk, which I do, I'd think of better ways to accomplish it, which I have.

Anonymous said...


Stop kissin CD ass in here just because you were called out for affirming CNu's racist death squad theme which your suck up ass excused away as black love

Stand in your own feet many moons ago you were a great fountain of wisdom and insight now you are just another cheerleader for a chatter class ventriloquist .,

Fact is you got slapped on the head for validating black racism get over it and enough of your pitiful genuflecting to CD ..

freebones said...


are you against car insurance?
do you dislike roads?
do you dislike public schools?
what about toll booths?

these are all things you are forced to buy, and they all turn a profit.

Anonymous said...


Please stay strong and independent..your counsel is needed on WARN

chaunceydevega said...

@Syn. I think I may have been vague. I didn't say it was good to be poor in America. Far from it. My point was more nuanced--if you ain't got nothing you go to county or a decent hospital, they give you some care, and you don't have a home, car, or in some cases a job to have a lien put against.

If you are on state assistance or public aid you can actually get care that is better than folks who are working or barely middle class. I know poor people with better dental care than those who have decent jobs and can't afford insurance.

I have seen this many times in my own family where people are 1 dollar or 10 dollars above some minimum income threshold and can't get care. Also, and I am sure some folks here can chime in on this, the system is so messed up that you have families liquidating assets to get end of life care for their relatives, or making sure a home, car, the bank is emptied so they can get SSI or get a family member into hospice care.

The system is broken all around. Again, which is why I am for single payer/extending Medicare.

Syn. This site is called we are "respectable" negroes. That means pragmatism, truth telling, aspiration, and yes some thinking through of the politics surrounding black respectability.

The website isn't called "we are lumpen black underclass excuse-making for poor behavior soft bigotry of low expectation negroes."

I am a black pragmatist. Oftentimes folks want doctrinaire talking points. I don't provide them.

chaunceydevega said...

@Fred. You have been here from the beginning and your honesty and perspective are always welcome.

This isn't an amen corner. I am not elitist--those are the jack and jill links types which I do not have the interest in, nor habitus and money to be affiliated with. I am a pragmatist. Sadly, some folks do not understand that. They want some type of ideologue who offers up tired talking points that are all one note--something they can take to the street corner or their "study circles."

The situation we are dealing with is kinetic. One must respond as such. Many of the loudest complainers would have been the sorts riding horses at machine guns in WW1 or the Crimea. Sad souls. They wave their flags for nothing and accomplish little.

Anonymous said...


Don't fall for more of CD's nonsense recently you made some sterling points about the Irish and you were trashed for them by CD

As a matter of record when I agreed with your insight I was attacked by CD for playing the "race card" for validating your views..

CD has become a walking hypocrite notice how he nows inserts a disclaimer about being so pragmatic..

Truth is for to log CD has been in a race chasing circular rut it was long overdue for a poster in here to push back and not only defeat his shallow narratives but to also advance a perspective that was superior to his driveby mailed in mush..

WARN is better because of poster like you and me and others...It has been stale and repetitive for a long time..

Just sayin..

chaunceydevega said...

@Anon. What are you like in real life? You are fascinating. What were you like as a child? Were you a consummate critic but one with no real talents to contribute? You strike me as a bit of free rider or heckler from the sidelines.

I ask because you overestimate your own importance and expertise, but consistently complain and downgrade others. Yet, at least here, you offer little of value. How did this happen to you?

Anonymous said...


Interesting how CD's opinion of me is not shared by any on this chat site and of course not by anybody in the real world that I live in..

Of course I could make the same backward opinion about CD other than his race chasing narratives what real talents does he have?

I would argue vey little which in part is why he posts under an alias and hides under a mask..

Of course what really drives CD's petty agnst with me is because unlike most posters and I am sure none of hi students or family ever challenge or push back to his ego mania..

CD I would wager has always bee and inflated ego and it has interesting observing him unravel in here this last month..He has called me very name in the world and yet he cannot walk away from his public defeat...I have ridiculed the man behind the mask and he simply does not know how to handle such a reality bites put down..

I will admit I have enjoyed bitch slapping CD especially employing his own words against his interests

But more importantly ny slaying the bullie that CD has become in WARN..I think I have encouraged and promoted more disseent which is always good:-)

chaunceydevega said...

@Anon. Keep on writing please. The more you do so, the more you prove my point about your unhinged narcissism.

Can you answer any of my questions at all? Have I not been patient with you?

Anonymous said...


Keep responding you affirm my views as well ,, I have been patient with your hollow persona as well ..,

Really what have you done? Express tired and stale derivative and circular racial essays in a chat forum .. You could not even raise $500 dollars, you hide behind an alias ..

Come on CD please tell us your value ???

chaunceydevega said...

@Anon. I keep asking? Did you donate? Is that not a worthy cause? I am not a fundraiser by training or habit. But we will pluck away.

Given how "pro black" you are, I would hope that you would remedy the situation.

Why this defensiveness and hostility? Gross anger as of late? What is going on? Are things transpiring in your life that are troubling to you? Is it the heat? Personal troubles?

What is your value? Have you made any money as a heckling internet poster? Or "community activist?" Any book contracts, invited talks, interviews, requests for TV appearances, etc. etc.?

The community activist hustle can actually be lucrative if you do it right.

Anonymous said...

You are at best a fictional chatterclass gadget full of self righteous indictments of others until you get grilled and you start whining like a wimp

Please tell us what have you done ??? I have help elect black judges and create black admissions for the inge you and CNu have contempt for ...

Please mask man tell us your worth. ... Chatter class ventriloquist for black buppies and guilt filled white liberals ..,,

Anonymous said...

Passion not anger remember you loss the right to define and call the shots on here... I have slated the inflated bullie you have become ..

Where are your contracts masked man ... You could not even extort $500 bucks from guilt driven white liberals and patronizing Jewish posters

Come on Get out of the closet you pedestrian thinking fraud ... Ha ha ha

Anonymous said...

CD= Magic Mike table dancing ventriloquist for liberal whites and guilt driven progressives who have always cultivated conduits
like you to articulate the
Negro problem

Truth is your act has been trite and stale for a long time ....

chaunceydevega said...

@anon. I love this, good fun on a Sunday:

"a fictional chatterclass gadget"

Should be on a t-shirt.

Again with Jews and guilty liberal whites. Give me some guidance please. How do I turn them upside down and beg for money? I need the help and guidance. I posted a request on a lark for something I thought could be of interest. Got some monies in a day or two. Will keep asking this week. Tips please? Are you going to open your deep pockets?

More fun:

"Passion not anger remember you loss the right to define and call the shots on here"

This is a website. Passion clouds your reason.

I can call the shots anytime I want to by requiring a login name, banning posters, do lots of things others would do with heckling malcontents. No biggie. I choose not to do so. The exercise is part of the fun.

Who are these black judges? Given how poorly many of our courts are performing I wouldn't crow to loud about that one or count it as a success. What are these admissions programs you have created? Where? What universities? What tier? How are these ign'ts you advocate for performing? What is the year to year retention rate? What supports are you offering?

Perhaps we could collaborate?

chaunceydevega said...


"Truth is your act has been trite and stale for a long time ...."

But you are still here. Why is that? Aren't there other places you could grump up and complain at? Help a brother out. Apply your considerable expertise and develop a list of topics you would like me to comment on. I would also need some of your approved talking points. Pretty please.

Alternatively, write something up and I will post it here. Please. I need you Anon, you are my only hope!

Anonymous said...

CD at your core you are a good person with value for the community I would never kick you to the sidelines but you are a iconic personality like me

You are a coward in many ways from your masked performance in WARN to I bet even I'm your
Personal domain but that is your problems to confront right now you bore me yet again

To be continued...

Peace & Love

Anonymous said...

There you go again playing the role if the noble elitist negro I bet you love giving license to white Jewish bigots who call you nigger in yiddish makes you feel good allowing white folks the liberty of keeping it real around you... Ha ha

You do not controll anything in here but your fiction go ahead mask man put some handcuffs on free speech in here I can get around them plus how would that look you are already a intellectual coward hiding behind an alias

Why should I post an essay I get more currency out of my learned comments ..shit fuck a narrative I like this better ... Ha ha ha

Just sayin...

Anonymous said...

Truth is I like piggy backing on pedestrian sites it blows us my persona and Internet legacy

Just saying G ... Ha ha ha

freebones said...

anon, why do all crazy people on the internet have horrible grammar?

is this something you all agreed to?


Synonymous said...


Who said it was? It might be better named "we attack those who disagree with us and accuse them of excuse-making for poor behavior".

Or maybe it's an "ain't those black people over there awful site".

Synonymous said...

"anon, why do all crazy people on the internet have horrible grammar?"
We practice a lot.

Anonymous said...

This is a chat forum not an English lit class you bozo...hahaha

fred c said...

My dear Professor and Anon's, thank you for the kind words.

We all have different styles, inclinations and abilities, but I think that it's important to remember that we, most of us, want the same things. Progress, equality, the good stuff, and real too, not Fairy Tale promises.

Discussion is critical to this effort. Activism is very nice, but remember, facilitation of discussion is a form of activism. That's the value of this site.

My heart is full of good will for you all, including that abrasive son-of-a-gun CNu. The discussion is the thing. Challenge a preconception, shine a light here and there, maybe we can all get somewhere.