Tuesday, March 27, 2012

Tomasky lays the smack down...

...but forgets to actually bring the smack.

Michael Tomasky authored what I'm sure he believes to be a scathing critique of the Right today. Entitled Behind Court Challenge to Health Care Lies the Right’s ‘Freedom Fetish’, the piece is an attempt to show that claims about the current administration "taking away freedoms" are just a bunch of nonsense. Tomasky opens with a challenge:
I defy anyone to name for me a specific and precise freedom that Obama has taken away from the American people. You can’t. When they’re not just invented out of whole cloth by multi-millionaire propagandists, all such laments are based on ignorance about what freedom actually means and an equal ignorance about how our system of government works.
But read what he says here very carefully, because he's off his nut right out of the gate. He wants someone to name "a specific and precise freedom" that has been lost, but then immediately moves to freedom in a general sense, ala "what freedom actually means." Two different things. Two very different things.

Because one can talk about the loss of freedom in general, about the erosion of liberty over time, brought about by greater and greater government overreach. And one can also talk about specific freedoms that we enjoy. Yet, the curbing of one of the latter--for instance, the right to keep and to bear arms--can occur without the loss of that freedom in its entirety. Such distinctions seem entirely lost on Mr. Tomasky, whose manner of thought and argument appears to be less than rigorous, to put it mildly.

Mr. Tomasky's intellectual failings should come as no surprise to frequent readers of this blog, as I've discussed him before. Previously, he completely botched the concept of "legislating from the bench." Now, he's stepping up his game and completely botching the concept of freedom.

At the end of the piece, he attempts to add some heavyweight support to his argument by calling up the spectre of John Stuart Mill, whom he says provides the "classical definition of freedom:
The classic definition of freedom, or liberty, is still John Stuart Mill’s. His sentence that goes, “Over himself, over his own body and mind, the individual is sovereign,” can be quoted out of context to imply that a person shouldn’t have to buy health insurance. But context shows that a few sentences earlier, Mill discussed the harm principle.
What Mill said, in full, is this:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right These are good reasons for remonstrating with him, or reasoning with him, or persuading him or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
Tomasky actually attempts to use Mill's quote to argue for the individual mandate. Seriously. Look:
A person can act with complete freedom so long as his actions don’t harm others. Well, pal, if you’re healthy and 35 and you don’t buy insurance and you get hit by a bus and you need $10,000 in medical care and you can’t and don’t pay for it, that harms me, because I’m an insured taxpayer and I’m helping to pick up your tab. That is freedom: not just the right to be left alone, but also the obligation to take responsibility for the consequences of one’s own actions on the freedom of other members of society. By that definition, the ACA is enhancing freedom, and personal responsibility—which is why conservatives were for the mandate in the first place.
It's an argument one might find in a paper by an undergrad taking an Introduction to Political Theory class. Tomasky warps the harm principle into exactly the opposite of what is intended by Mill. Very clearly, Mill is saying that his actions alone must be intended to harm another person. Intended! If I get hit by a bus, I have no intent to harm Mr. Tomasky. His argument is the worst kind of stupidity, couched as it is in a complete lack of understanding with regard to employed terminology.

And I can't help but wonder if Mr. Tomasky would jump on the J. S. Mill bandwagon if he knew that Mill also said this:
Both in England and on the Continent a graduated property tax (l'impĂ´t progressif) has been advocated, on the avowed ground that the state should use the instrument of taxation as a means of mitigating the inequalities of wealth. I am as desirous as any one that means should be taken to diminish those inequalities, but not so as to relieve the prodigal at the expense of the prudent. To tax the larger incomes at a higher percentage than the smaller is to lay a tax on industry and economy; to impose a penalty on people for having worked harder and saved more than their neighbours.
Or this:
War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth a war, is much worse. When a people are used as mere human instruments for firing cannon or thrusting bayonets, in the service and for the selfish purposes of a master, such war degrades a people. A war to protect other human beings against tyrannical injustice; a war to give victory to their own ideas of right and good, and which is their own war, carried on for an honest purpose by their free choice, — is often the means of their regeneration. A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself. As long as justice and injustice have not terminated their ever-renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other.
Probably not, huh? And Tomasky has the nerve to suggest that others don't understand the concept of freedom. It's a laughable column, by a small mind in way over its depth. Besides, this is the classical definition of freedom as given by John Locke in 1690:
Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it; a liberty to follow my own will in all things, when the rule prescribes not, and not to be subject to the inconstant, unknown, arbitrary will of another man.
I'd pay good money to see Tomasky parse that into a defense of the healthcare mandate. And that's because I'm free to do so.

Oh and by the way, for those that might think Tomasky'c challenge--about what freedoms have been curtailed by the Obama Administration--stills stands, readeth though this.

Cheers, all.


  1. All the people arguing that if you are uninsured and go to ER you are free riding come from a mistaken point. Are you not given a bill for your services if you are not insured? Isn't not paying such a bill is an offense? So, basically, people who make the original case assume that everyone without health insurance are crooks that don't pay their bills. Kinda makes TSA sensible :-). And while we are at it, why is it that the mandate is not for catastrophic cases? May it be that the case of uninsured being hit by a bus is not representative of what the mandate tries to achieve?
    Jonathan Adler from the Volokh Conspiracy had a good take down of Lithwick http://volokh.com/2012/03/28/lithwicks-lament/ , and in the comments David Berenstein makes a good comment http://volokh.com/2012/03/28/lithwicks-lament/#comment-478493675
    "I think this gets to why the mandate exists to begin with (as opposed to using other means to the same ends), and why it's in trouble now: liberal elites haven't and don't take the other side's constitutional arguments and concerns seriously, and if you don't take those arguments seriously it's hard to draft and defend legislation against those arguments."

    By the way, I have no ideological opposition to some sort of universal healthcare system (Israel's works fine it seems), but there are very obvious issues of implementation for such systems in US. Some sort of state based systems would be more sensible (though not without problems).

  2. Thanks for links, DM.

    In a simplified view, the issue is whether or not a utilitarian argument is justified, within the framework of the Constitution, proper.

  3. Firstly, I should say that I am NOT a libertarian, but I am also NOT in favor of the individual mandate.

    From a Constitutional standpoint, I found Randy Barnett's responses Ezra Klein to be the strongest arguments against the individual mandate.

    But Tomasky's use of Mill's "harm principle" to defend the mandate has been used before. For example, in a 1994 paper, Robert E. Moffit of the Heritage Foundation wrote in support of the individual mandate, saying:

    "An individual mandate for insurance, then, is not simply to assure other people protection from the ravages of a serious illness, however socially desirable that may be;
    it is also to protect ourselves. Such self-protection is justified within the context of individual freedom; the precedent for this view can be traced to none other than John Stuart Mill."

    (Moffit then goes on to qualify himself, saying this applies only to "catastrophic protection", not requirements for "comprehensive health benefits packages." But if opposition to an individual mandate is a basic liberty issue, does it make any difference?)

    Further, there is Mill's own arguments. According to the Stanford Encyclopedia of Philosophy's entry on Mill's moral and political philosophy, things are more complicated than Tomasky treats them:

    "Is harm sufficient to justify regulation? In general, Mill writes as if the prevention of harm is a sufficient justification for restricting liberty. However, at one point, he claims that causing harm to others creates a prima facie case for restricting liberty (I11). The suggestion seems to be that causing harm is always pro tanto reason to regulate the action, but that regulation may not always be on balance best. Perhaps effective restriction of the harmful behavior is very costly or has other bad side-effects. If the regulation is more harmful than the behavior in question, it may be best not to regulate."

    BUT, there's also this:

    "Is harm necessary to justify regulation? Though some of Mill's pronouncements suggest that causing harm is a necessary condition of restricting liberty, closer inspection suggests that Mill's considered answer must be No. It seems abundantly clear from various claims Mill makes both within On Liberty and elsewhere, that he is willing to countenance restrictions on individual liberty that do not appear designed to prevent harm to others."

    So, harm is a reason to regulate, but that regulation may not be best. However, in other cases, harm is not necessary to justify regulation, according to this reading of Mill.

    So, while I understand your objections to Tomasky, I wonder whether Mill could still be used to justify the individual mandate in some way (in the hands of someone who has a far better grasp of Mill's philosophy than Tomasky, obviously).

  4. Thank for the thoughtful analysis, jmhenry. However, I would stll argue that--for Mill--intent matters. Again, if I get hit by a bus, there is no legitimate way to argue that my actions--or lack thereof--someone represent a harm to you or anyone else, regardless of whether or not I have insurance.

    Even assuming this was not the case, that the harm principle was applicable here, the thing to regulate--from Mill's perspective would by the bus, not insurance.

    Toamsky's entire construct--flawed as it is--rests on this additional flawed premise: that health insurance is a necessity as a means of obtaining healthcare.

    Many people of a libertarian/conservative mindset--like me--have no problem with the state providing emergency services to the citizenry at large. But such services should be predicated on healthcare costs that hive not been artificially inflated by the insurance industry. That's the real issue. Because, again assuming Tomasky's argument was valid as given, it would be just as easy to argue that everyone carrying insurance causes ME harm, since this inflates medical costs and thus--if I have no insurance--means I must pay more for services.

    It's warped reading of Mill, in my view.