Is the Individual Mandate Constitutional?

Short answer: probably.

Long answer: It depends what you mean by calling something "constitutional". If we define (Def. A.) constitutional as meaning in line with the Supreme Court's commerce clause jurisprudence over the last 200 years, then I would say, probably. If we define it as conforming to some originalist conception of the limits of the federal government held by the founding generation (Def. B.), I would say, we can have no idea. If we define it as what a majority of justices on the Supreme Court will do when it gets there (Def. C.), I think we can still say they'll probably count it as constitutional.

A and C involve almost the same thinking process, because typically if something conforms with 200 years of jurisprudence, the Supreme Court will rubber stamp it. But that's not always true, and the justices are not isolated apolitical creatures who remain uninfluenced by the national debate. Just like all 9 Justice could vote in favor of the measure, I can definitely see all 5 conservatives voting against it. I don't think that will happen, however, as I will discuss.

So, the problem with the individual mandate (IM) is that it apparently forces individuals to purchase health insurance from entities that meet certain criteria. Opponents of the IM who argue that it is unconstitutional (Opponents) argue that the constitution does not authorize the federal government to force individuals to purchase anything.

So, one response is just to say that the federal government is not forcing you to do anything. The government wants you to buy health insurance. If you do, good on you. If not, the government wants you to pay a fine or tax, the moneys of which will go into the pool of money which funds the government's expenditures on health, presumably towards treating people without health insurance. The fine or tax is not that much, and can't exceed, I believe, 2.5% of your income. Also, there's a provision that forbids the IRS from starting criminal proceedings against anyone who doesn't pay the fine/tax, so you can't go to jail if you don't pay it.

I don't particularly like this argument, because I'm not sure how a court will look at this. It could be that in this instance, there's no coercion, but then the Court would have to examine future instances, looking at the substance of the law and its enforcement mechanisms, to see if counts as coercive or not. Is 3% coercive? 10%? I'm not sure where one draws the line, or on what grounds one would draw it.

A much better argument is that the constitution allows the federal government to tax really whatever it wants, provided it's for the general welfare, which Obamacare certainly is. Opponents have argued that this is not the way that either Congress or the Administration have been framing it; they've been calling it a mandate (connoting the fact that people must do something) and not a tax (a collection of revenue from people who choose to engage in certain activities, in this case, not buying health insurance). FWIW, this makes little sense to me. What does a Court care about how the Democrats framed something for political debate or Sunday morning talk-shows? The court will look at it, see it's a tax, and call it as such. Try a thought experiment. If the government decided to kill people randomly, but labeled it a carbon tax in all its attempts at spinning the law to the press, would we think it makes sense for the government to consider it a carbon tax, and not the random murder of citizens?

But I think a more fundamental reason why the constitution authorizes it, is because the government's power to regulate interstate commerce is pretty strong. One argument opponents make is that as strong as the commerce clause is, it's never been used to force people to perform actions when they're not doing anything. In other words, government can't regulate interstate inactions, just interstate actions. People always ask, "Can the government force me to buy a GM car, or force me to eat my vegetables?"

Okay, let's break this down. Let's assume that the government has never attempted to regulate inaction. So what? Why should that make a difference? It's never been questioned before that the government can't regulate inaction - what's the constitutional reason why government can't regulate inaction now?

So then we get to the idea that if the government could regulate inaction (i.e. forcing you to do things), then we would be empowering if not a tyrannical government, then at least a government with a loaded gun, which could be used to launch a tyranny at some point. Imaigne a dystopia where the government forced you to eat vegetables or buy crappy GM cars! Surely, the constitution does not authorize dystopias? However, honestly, I'm not sure why not. If the government can make a compelling case that you buying a GM car is necessary or helpful, even, to its national commercial regulatory scheme, it seems clear to me it can force you to buy a GM car. This may be exceedingly dumb policy and prove to be very unpopular, but the constitution authorizes scores of dumb and unpopular policies.

The reason why the government (probably) won't force you to eat your vegetables is not because the constitution does not authorize it, but because Congressmen don't want to get fired. If 60% of the House of Representatives and the Senate think an IM is a good idea, then as far as the constitution is concerned, it's probably a good idea. That is, the constitution does not care if something is a good idea or not. If those democratically elected representatives want to roll the die on their careers, I'm largely comfortable letting them make that choice.

We have to get over the idea that the constitution protects us from tyranny and bad policy. In reality, it's us. When push comes to shove, what stops a military junta from taking power is not Congress's theoretical control over its funding, but the fact that the common man, and the common soldier and officer, would see such a coup as illegitimate.

What Makes a Jew a Jew?

One of the big issues threatening to blow up the world* is that of conversions. In Israel right now, there appears to be a big hullaballoo over whether the conversions performed by the IDF rabbis were valid. Traditionally, conversions into Judaism involve the convert at some point accepting to keep all of the mitzvot in the Torah. At some point in the last few hundred years this became mandatory practice (it appears this definitely was not always the case), and it looks like the IDF rabbis were/are not sticklers on that last part. This is a big deal, because the conversions in question are largely conversions of the Russian immigrants that were oleh in the last 20 years, after the collapse of the Soviet Union. There are estimated to be about a million of them, practically all of whom consider themselves Jewish, but a theoretically substantial minority of which don't have a technically Jewish mother, meaning they technically require conversions.

From what I can tell, there appear to be two camps. On one extreme, you have the chareidim, led by Rav Elyashiv, who believe that since "everyone knows" these converts had no intention to actually keep all the mitzvot, their conversions are invalid, and indeed, never were valid. Sephardim, led by Rav Yosef, argue that the conversions are fine. I don't really care about the finer technical points of the dispute, and while I apologize if I've mischarachterized anything, it's not really germane to my point.

My question is, what really makes a Jew a Jew? I don't think Rav Elyashiv thinks that our conversion standards have always been the same, and that we have always required the honest acceptance of the mitzvot, because the rishonim certainly don't reflect such uniformity. Rather, it seems to me, the title or status of Jew is something the community bestows upon a person. In the old days, if someone acted like a Jew, and thought of himself as a Jew, others would too, and that was enough. By the same token, that seems to be the way it works today. Nobody checks my lineage. Rather, I go to shul, I keep shabbos, and I eat kosher, so I'm Jewish.

I don't think there's some objective record of who's really really Jewish up in Heaven that G-d has, and to get on that list, you have meet a very concrete and specific line of regulations. If we think you're Jewish, you're Jewish. Definitely, no one has completely pure yichus without one single gentile in their family, or can vouch 100% that they know that any potential converts on their mother's side in the last 3000 years were mekabel chiyuv mitzvis. Certainly these "lost Tribes" we keep finding in Africa or India or China can't do that, and it's funny that we all just "pretend" they're "really" Jewish.

I think the only reason we have any objective standards at all is just so that the status of Jew doesn't become meaningless. If it was just a listserve or something that you sign onto, what good is it? That's fine, and I think that makes sense. That explains why Judaism requires that you marry Jewish - it's more likely that your children will be raised Jewish if both spouses are committed to their Jewish heritage. But in this situation, I think we've got that. These are immigrants who have come to the Jewish state to embrace their Jewish and Israeli heritage. They serve in the Israeli army, build illegal settlement outposts, and run on racist Jewish-supremacist party platforms to become the foreign ministers of the Jewish state. To me, there is no greater acceptance of Jewish heritage than those things. We don't have to worry that they secretly are celebrating Christmas or going to church or planning pogroms in their basements. It's not as if marrying them will really dilute Judaism in any effective way. Also, there are like a million of them living in a country with a tenuous Jewish majority, and writing them out of Judaism right now would be a really stupid idea.

Jews are who we say they are. If all the Rabbis got together and said, these people are Jews, everyone would be fine with that. Everyone would accept that. So I would really wish Rav Elyashiv would take a pragmatic approach here and recognize that he has agency. These guys are just as Jewish as any non-frum Jews. As long as Rav Elyashiv says so.


*The world of Torah, that is!**
** I.e., the only world that counts, mister.

Must Orthodox Jews be Racist?

I think we're all comfortable saying that there are many Orthodox Jews who are racist, and that there might even be a correlation between how frum you are recognized as being, and how racist you are. This makes a certain degree of sense, as frummer Jews tend to be live in more insular communities, and more insular communities tend to be racist.

So, we more modern Orthodox Jews pat ourselves on the back, and tut-tut those backwards Chareidim for their primitive perspectives. But how much better are we? Don't the doctrines of Orthodox Jewry, e.g. the belief that the Jews are the Am ha-Nivchar (chosen people), necessitate a degree of racism?

A few weeks back, Rabbi Harry Maryles had a thoughtful post on his blog about a story in Lakewood where a few yeshiva kids had apparently called a bus driver a nigger. He wondered what could cause such kids to do something so inhumane, and concluded they had been imbibing the soft racism of their parents or teachers, or who had misunderstood "our status as G-d's chosen people."

While believing your people to be the chosen people does not necessitate using racist slurs (just because you're better than everyone doesn't mean you have to be a jerk about it, I guess), I think it really does mean that you think you are better than other people. That your people is worth more than other people. That your people are more loved by the G-d of everyone than His other people. That by your very nature, even absent any actions you might commit, you can be holier than someone else. And no matter how you pretty this up, there doesn't seem to me to be a way to separate this sentiment from racism. I think in any other segment of the populace, we would find these beliefs repugnant. If WASPs thought this, we would find them racist. Why is it different when it's us?

Last week, Rabbi Pruzansky wrote about the two letters that had gone out in Israel decrying the mixture of Jews and Arabs. One letter, signed by Rabbis, purported to prohibit the sale of property by Jews to Arabs, and was widely condemned by Jews everywhere, and the other, signed by Rebbetzins, urged women not to have relations with Arabs, and was not so widely panned. Rabbi Pruzansky seemed to object to the letters only because they appeared impolitic, and represented halachos sh'ein morim kein (laws that we do not publicly teach because they make us look bad). He had no problem with the actual substance of the ban or discouragement, and he attempted to explain why the segregation mandated by the Torah cannot be compared to the Nuremberg Laws:

His argument seemed to be that the Nuremberg Laws were written out of hatred for Jews, and are thus repugnant, but the Torah's laws celebrate the love of Jews and therefore are not repugnant. In his words:

The [Nuremberg Laws] did it out of racial hatred and pure evil; the Torah does so out of a need to preserve the unique character of the Jewish nation that would convey the divine idea to the world. The former was vile and odious, and the latter a reflection of God's love for the Jewish people and for mankind. But a simpleton will only look at the results and, seeing the same prohibition, conclude, "it's all the same." It is not all the same, and that shallowness is more polemical than it is sincere.

At the risk of sounding like a shallow polemicist, I don't think I see a difference. The fact that the results are the same is a very profound argument. I mean, had the Germans forbade Jews to purchase property out of love for German property, would we have found that okay? I don't think so. If they did it to preserve the unique character of the German race, would that have been okay? If they claimed that was why they did it, would we believe them? More importantly, would that make it better?

A friend of mine who is a very big fan of Kahane (who I think was a racist) once tried to justify to me Kahane's racism by quoting Kahane as saying that "it's not that I hate Arabs; I just really love Jews." That didn't help, in my eyes. And it's the same thing here. Saying "I just love white people more" is obviously a racist sentiment.

But oddly, this attempted justification seems to be the best answer Judaism has been able to give to explain the presence of racist halachot. I'm referring to the "family" explanation. This is even favored by more modern rabbis in OJ, such as Gil Student (I think) and Rabbi Pruzansky.

Pruzansky: So why does the Torah - which, after all, posits that all human beings are created in the image of God - discriminate between Jews and non-Jews in certain laws? Because Jews constitute one family (that's why we always argue with each other), and family is allowed to treat non-family differently; otherwise, there is no purpose to family. Thus, we are enjoined to "love your neighbor as yourself," but I am allowed to love my wife and children more than I love your wife and your children. As a Jew, I am commanded to love Jews more than I love non-Jews, not because there is anything wrong with non-Jews but because Jews are family. It is not immoral to distinguish family from non-family; it is right, natural and proper.

At the risk of being crude, this strikes me as BS. This sounds facially logical, but if you actually think about it, it's pretty fallacious. The first question it begs is that what makes Jews considered a single family, but not all of humanity? Maybe all white people are a family? Maybe all gentiles are a family? If you want to say that all of humanity is too big to be a family, I would ask, why? There are millions of Jews today whom Rabbi Prizansky evidently considers family; that seems like a ludicrous amount of people to consider family. There was a time two thousand years ago when I doubt there were that many people in the entire world. And now, we can easily imagine considering them family, but not the other six billion people? What's the practical difference?

And if you want to say that all of humanity can't be considered to be a single family, because then no one will not be family, I would say that's also ridiculous. What you're doing, then, is defining family as an inherently exclusionary club. The whole point of being in a family, then, is to deny my resources to other people. And why is that "right, natural and proper"?

And obviously, Rabbi Pruzansky does not consider me to really be just as much his family as his own actual family - but he considers me closer than his gentile coworker. We've created a new connection, a new family structure, whose whole purpose is to entitle me to better treatment from Rabbi Pruzansky (whom I have never met) than to which his coworkers are entitled. And it is based entirely on race.

Again, if white people thought this way, would we hesitate for a second in calling this racist?

The second question he begs is that who said you should treat your family better than my family? The pasuk he cites - And thou shalt love thy neighbor as thyself - directs the opposite inference! Now, I can see why genetics would drive such a conclusion, or why we would want to think this way, but why should an Omniscient, Ultimate Benevolent G-d endorse such a perspective?

Third, I think this is BS because it's not as if the benefits we are denying to gentiles are based on familial affection. I could see it maybe if we were commanded to give Jews more charity than we give non-Jews; fine. But how is not selling them property, or refusing to marry them based on family? Selling one's house and marrying someone are two activities one does not associate with doing particularly with one's family.

In conclusion, this is very troubling. I don't think there's a way to square this circle.

The Asshole Theory of Diplomacy

To me this sort of thing seems to be the wrong way of looking at things:

Israeli Foreign Minister Avigdor Lieberman's criticism of Prime Minister Netanyahu for his goal of peace this year with the Palestinians, as well as Lieberman's request for an apology from Prime Minister Recip Erdogan for Turkish participation in the Gaza-bound flotilla, has cheered friends of Israel everywhere because they are rare examples of self-respect and national honor coming from an Israeli public official (news story, Dec. 31).

However, Lieberman apparently shocked shtetl-minded members of the Netanyahu government. A spokesman for Netanyahu immediately assured the hostile foreign news media that Lieberman's views are his own and do not represent those of the government. One minister in this supposedly right-wing Likud government even accused Lieberman of appealing to right-wing voters! He also agonized over what "the world" would think.

Unlike Netanyahu and his other ministers, Lieberman has learned something important from history. He knows the world respects a people who respect themselves and despises weakness and self-abasement. He also knows that appeasement alienates friends and incites and energizes Israel's enemies while greatly increasing the chances for war.

I call this the "Asshole Theory of Diplomacy" because it seems to follow the perverse logic that the only way to get people to like you, or respect you, is to act like an asshole to them. The assumption is that countries that apologize, or use diplomatic language, or are more interested in keeping friendly relations with others than using blunt, macho language that exemplifies "the truth," only serve to make other countries hate them even more, and view them as weak and pathetic; in other words, not worthy of respect.

A similar argument is that the only way the Israelis can dwell securely in Israel is to build even more settlements, even further from the Green Line, to show the Palestinians that Israel will never leave, and that therefore they should give up their silly dreams of nationalism and maybe move to Hawaii, or be content to chop our wood or hew our water or something. Again, the logic is that only by adopting politics of spite can we convince them of our righteousness.

There are a few flaws in this reasoning. First, just intuitively, why would we think this is true? Just from our day to day interactions with other people, can we conclude that acting like an asshole gets people to like, or even respect us? I don't think so. Sure, if you're being bullied, perhaps the best response is not, "Please sir, may I have another," but in the vast majority of interpersonal relationships, acting like a douchebag does not make people respect you. No one likes the office douchebag, or the douchebag cousin.

Second, the people who subscribe to the Asshole Theory tend to be the sort of people who believe the Israelis do have a right to establish civilian settlements anywhere, and that Arab-Israelis should face discrimination, and that it is the rest of the world that is immoral and that therefore they should be treated with contempt. The Asshole Theory lets them do everything they wanted to do anyway, but now assures them that this will make people like them. So, not only is this the right thing to do, despite the objections of everyone else, but indeed by following our preferred course of action, we will eventually make everyone stop objecting and see the rightness of our position. Conversely, stopping the activity that everyone objects to, or apologizing for it, only encourages them to find more things to object to, and more reasons to hate us.

Now, I think we should be instinctively suspicious of this sort of logic, the same way we would be if our doctor told us the only way to lose weight was to eat more and exercise less. It's like saying, not only is my smoking not injurious to my health, it has a salubrious effect as well! It's just a little too perfect.

Now, you might say, hold on, naive little liberal. The world of diplomacy is not like your fluffy dreamland of interpersonal relationships with friends, family and coworkers. It's full of cutthroat realists; politicians and dictators that would sell their mothers down the river to a place where they can throw their grandmothers under buses for a quarter they got from selling candy they stole from babies.

I doubt it. In fact, I would assume that the world of diplomacy is probably overpopulated by diplomats. In other words, people who tend to think diplomacy and diplomatic language and behaviour is important. Career foreign service types. It is precisely these sort of people that would see the benefit in apologies and not acting like a dick. And the politicians they serve didn't get to their high positions by acting like assholes, though I'm sure most of them in fact are. And I don't just mean that for Barack Obama to get to where he is, he has to be nice and friendly and yes, diplomatic, to hundreds, and probably thousands of people. Even a dictator like Hosni Mubarak, or whatever Abbas or Fayyad are, can only achieve and maintain power by being able to cultivate allies, and to persuade others to join his coalition, or at least put aside their differences for a long time. Becoming dictator is not all just purging your enemies in bloody coups, you know. Before Stalin was in a position to purge the Soviet Union, he had to become head of the Soviet Union, or at least his faction. This required him to make lots of friends, and to be able to call on lots of favors, and to know how to back winning horses, and to know when to pick his fights. In fact, one of the observations that people made about early Stalin was that he was a very very very good listener.

And even if the world of diplomacy was populated by thugs and psychopaths, I still don't think being an asshole would be a good strategy. Doubtless the world of mafia men is governed by scum and murderers, but it's also a world that is famously governed by elaborate diplomatic norms. In Mario Puzo's novels, the point that is made again and again is how Vito Corleone's greatest strength was his diplomatic style. He never threatened when threats were unnecessary, and never insulted another man to his face.

And, again, I don't think the world of diplomacy is ruled by the very worst people in the world. The United States is Israel's greatest ally, and Israel's relations with the PA over the next 20 years will say a lot about whether there will be an Israel in 20 years. Both of those countries are overwhelmingly populated and governed by people who do not enjoy being insulted, in other words, normal human beings. If it would be a mistake to be an asshole to those normal people in normal situations, it's probably a mistake to be an asshole to them when nationalism and religion are thrown into the mix.