Health Care versus the Civil Rights Act
March 28, 2010
Jonathan B. Wight
Frank Rich in today’s NY Times makes an interesting analogy:
To find a prototype for the overheated reaction to the health care bill, you have to look a year before Medicare, to the Civil Rights Act of 1964.... The apocalyptic predictions then, like those about health care now, were all framed in constitutional pieties, of course. Barry Goldwater, running for president in ’64, drew on the counsel of two young legal allies, William Rehnquist and Robert Bork, to characterize the bill as a “threat to the very essence of our basic system” and a “usurpation” of states’ rights that “would force you to admit drunks, a known murderer or an insane person into your place of business.”
Richard Russell, the segregationist Democratic senator from Georgia, said the bill “would destroy the free enterprise system.” David Lawrence, a widely syndicated conservative columnist, bemoaned the establishment of “a federal dictatorship.” Meanwhile, three civil rights workers were murdered in Philadelphia, Miss.
Jonathan’s query for readers:
The Civil Rights Act could be criticized on libertarian grounds: The Act deprives me of my own liberty to run my business exactly as I like. If I run a restaurant, the act forces me to serve people I previously may have barred based on race. The act forces upon me certain minimal standards of behavior as a basis for citizenship. It is thus coercive. Yet most Americans today support the Civil Rights Act as a necessary delineation of African American rights—implying that others do have positive duties toward fellow citizens.
For those following the previous post on health care and
conscription, does this analogy to the Civil Rights Act work? Why or why not?
I see your point, Jonathan, but the Civil Rights Act concerned behavior toward others (a more legitimate justification for state coercion), while the health care bill mandates behavior primarily focused on oneself (which if more of a problem).
Posted by: Mark D. White | March 29, 2010 at 08:46 AM
I hate to keep saying the same thing, but the analogy fails because the health care mandate represents a new kind of coercion.
You were right to call me out for my "living in a van down by the river" example, since that person would likely be covered by Medicaid already. And, in fact, it is difficult to imagine a person who would fall under the mandate that does not already pay taxes.
You have argued that this makes the difference between a mandate and a tax moot. I am still unsure, so I will fall back on the slippery slope. HCR establishes a precedent where the government can order me to purchase a good from a private firm. If I decline, I am a criminal. To my knowledge, this is a totally new way for the law to operate. And you may be correct to cite the hyperbolic debate over the CRA to show that the slippery slope does not always happen, but I am predisposed to be suspicious when my relationship with the state changes in such a radical way.
Maybe it would help to look at how HCR and the CRA are different. Title II of the CRA mandated that a lunch counter has to serve all people regardless of race. But it did not mandate that the owner stay in business. A racist shopkeep was within his or her rights to close up and walk away. (Good riddance) The act of not providing lunch to *anyone* was not criminalized. On the other hand, not having health insurance is now a criminal act. I have no ability to opt-out or walk away. It is a confused point, because I'm comparing producers and consumers, I'll admit.
(Finally, I wish Rich would of cited some of the language used by the CRA's proponents. I'm certain it was argued that the CRA would *solve* many of societies ills that are still with us today. This is not unimportant when comparing HCR to the CRA. It's interesting that opponents of major legislation are often chastised when their predictions are later seen to be over the top, but supporters are rarely held accountable for their statements.)
Posted by: [email protected] | March 29, 2010 at 08:54 AM
Title II of the CRA mandated that a lunch counter has to serve all people regardless of race. But it did not mandate that the owner stay in business. A racist shopkeep was within his or her rights to close up and walk away. (Good riddance) The act of not providing lunch to *anyone* was not criminalized.
Good point, Mike--wish I would have caught that!
Posted by: Mark D. White | March 29, 2010 at 11:27 AM
It seems to me that forcing someone to go out of business as the only way to avoid having to do something they don’t want to do... is equally applicable to the case of health insurance.
To avoid buying health insurance, simply close your business (as in the CRA case) or quit your job. You no longer have to pay with your own money, but the state will subsidize you with theirs.
That leaves me thinking HCR is a lot more like the CRA.
Posted by: Jonathan | March 29, 2010 at 06:49 PM
But the point is that you have to purchase health insurance whether you have a job or not. You don't have the choice to go without insurance, like the racist restaranteur has the choice to close his business rather than serve racial minorities. Service to all is a condition of opening a business under the Civil Rights Act, but having private health care coverage is a condition of citizenship under the health care bill.
Unless you're Amish, of course. :)
Posted by: Mark D. White | March 29, 2010 at 07:52 PM