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The Constitutionality of the Affordable Health Care Law Upheld by the U.S. Supreme Court!

This is a great day for all Americans. Earlier this week the Supreme Court struck down the illegal  parts of Arizona’s unconstitutional immigration law.  Today they ruled on the constitutionality of the Affordable Health Care Bill.   I believe that during the implementation of the Affordable Health Care Law over the next two years, those Americans who still have reservations about “Obamacare” will clearly see, when the law is systematically unpacked and explained, that it is incredibly beneficial for individuals and also for our wounded economy.  It also affirms that health care is a human right. It is a human rights document as much as the Civil Rights Act of 1964.   For more information about the Affordable Health Care Law, see: http://www.barackobama.com/health-care?source=health-care-soundbite.

This week the Supreme Court showed that it is indeed an independent branch of our Federal government and not moribund in partisan politics.   The court stands above politics, special interests, and the pressure of money.   I found this realization a great relief especially after the Bush v. Gore, 531 U.S. 98 (2000), which resolved the 2000 election giving Bush the presidency, and, the January 2010 Citizens United  v Federal Election Commission decision that allowed the establishment of super PACs.

On June 20th, 2012 I published an article on this blog entitle  “What Lies Between Absolute Ideology and ‘Real Politik’: The Common Ground and Common Morality of Common Humanity.”  This was my first attempt writing a political commentary on my blog.  Shortly after that  I received  in the mail the latest edition of “Harvard Magazine” (July-August 2012, volume 114, number 6).  I was happy to see it dedicated to many issues concerning our political health: “America’s Damaged Democracy: On compromise, the franchise, and campaign cash.”  I read these articles with great interest.

The first article “A Radical Fix for the Republic” by Jonathan Shaw details the opinions of Harvard professor  Lawrence Lessig as found in his books:   “Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It” (2011),  and “One Way Forward: The Outsider’s Guide to Fixing the Republic” (2012), an e-book, both of which analyze the corrupting influence of money on American politics (both available via Kindle).  In his opinion, the U.S. Congress has become co-dependent on lobbyists and special interests and their money.  Lessig objects to the infusion of massive amounts of money, which distorts the  political process. He is very critical of the unhealthy need of politicians to be endlessly campaign for huge campaign donations.  He points out that congress-people should not be dependent on money but they should be dependent on the people.  It was the Supreme Court’s controversial decision upholding Citizens United v. Federal Election Commission, a decision which allowed corporations and unions unlimited political spending, that spurred him to act.  In response to the development of Super PACs  Lessig does not merely propose a Constitutional amendment, but challenges that states to call for a second “Constitutional Congress,” which would convene to propose an amendment for campaign finance reform.  Delegates to this convention would uphold the following principles:

To provide that public elections are publicly funded, to limit, and make transparent, contributions and independent political expenditures, and to reaffirm that when the Declaration of Independence spoke of entities endowed by their Creator with certain inalienable rights, it was speaking of natural persons only.”

This radical proposal (of convening a Constitutional Convention) is rooted in Lessig’s belief that this is the only way to correct the distortion in our politics due to the infusion of a vast amount of money.  Is our trust in the power of our common humanity or in the power of money.  The weight of huge amounts of money creates a re-distribution of power away from the will of the people to the will of a moneyed elite.

I have mixed emotions about convening a Constitutional Convention. I whole-heartedly agree that the power of the Super-PACS is a horrible thing. Previous legislative attempts at campaign reform have failed, but someday a legislative answer could possibly be found. A constitutional amendment needs to define more clearly our unalienable rights as human beings. Would an “campaign reform” amendment do that?  Perhaps a clear definition of the difference between “natural persons” and “other entities” might more deeply clarify our unalienable rights!  This could refer not only to “human being” versus “corporations” but perhaps someday to human beings versus artificial intelligence, for example.  I leave this open for further consideration.  For the moment, I am inclined not to mess around with the Constitution.

 The second article is “The Case for Compromise” by Amy Gutmann and Dennis Thompson.  These authors claim that the uncompromising attitude so prevalent in politics today has been fostered by endless campaigning.  Campaigning is interfering with governance. The political process exists for the decision making process of establishing policy and legislation.  The process doesn’t just exist for fighting!  Their new book is entitled “The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It “ (Princeton University Press, 2012).  We have forgotten that politics is the art of what is possible and that requires the ability to compromise.  Only during a political campaign can a politician indulge in absolutes and most people, at that time, are concerned more about character than the details of policy, but eventually, policies must be addressed.  An elected public servant, who is serving the whole people as well as his/her constituents, must have the ability to compromise.

The authors recognize two types of compromise:  “Classic compromise” which demands shared sacrifice on the part of all involved in the compromise, and,  “Consensual Compromise”, which is based on “common ground” and “consensus.”   Their view is that “consensus” and emphasis on “common ground” can only lead to mutual agreements about generalities, not agreements about the details of implementation.  Only “classic compromise,” where everyone ends up dissatisfied, can accomplish that.  They think that seeking “common ground” only leads to the attempt to find a “win-win” compromise which is impossible when negotiating legislative details.   I don’t believe that the differences between these two forms of compromise are incompatible.  I think they overlap.

The truth of the matter is that even sincere persons, such as members of The Society of Friends, seeking a real “consensus” with the best intentions for success often can not find a “win-win.”  There will be give and take on principles and persons will have to give up something of what they value.  There will be shared sacrifice. Participants are seeking  “consent” not necessarily “agreement.”  Another way to put it, the goal is “unity” not “unanimity.”  Those seeking “absolutes” will always find it hard to find a consensus.  The Society of Friends has traditionally avoided the absolutes of dogma and doctrine and even creeds.  They believe that absolute ideology, even religious ideology, will hamper the work of the Spirit as well as the work of human beings.

The following is a synopsis of the Quaker-way of consensus (A Comparison of Quaker-based Consensus and Robert’s Rules of Order.  Richmond, Indiana: Earlham College  Quaker Foundations of Leadership (1999, http://legacy.earlham.edu/~consense/rrocomp.shtml):

  • Multiple concerns and information are shared until “the sense of the group” is clear.
  • Discussion involves active listening and sharing information.
  • Norms limit number of times one asks to speak to ensure that each speaker is fully heard.
  • Ideas and solutions belong to the group; no names are recorded.
  • Differences are resolved by discussion. The facilitator (“clerk” or “convenor” in the Quaker model) identifies areas of agreement and names disagreements to push discussion deeper.
  • The facilitator articulates the sense of the discussion, asks if there are other concerns, and proposes a “minute” (short statement) of the decision.
  • The group as a whole is responsible for the decision and the decision belongs to the group.
  • The facilitator can discern if one who is not uniting with the decision is acting without concern for the group or in selfish interest.
  • Dissenters’ perspectives are embraced

Participants give and take in the discussion and modify their positions as the process moves on. In-other-words, they will compromise. It is also understood that this will most probably be a very long process since each person must be given equal time to speak and also have their understanding satisfied.   It is part of the Quaker tradition that persons who still strongly disagree with the evolving consensus-decision but see that “the sense of the meeting” is otherwise unified, can opt to “stand aside.” They can “stand aside” and register their reasons for doing so.  In doing so they will let the decision stand and will also be gracious enough not to sabotage the consensus/unified decision.  It should be stated too that Friends would be the first to say that consensus-decision making doesn’t always work.  The Friends themselves have fallen into schism and have experienced severe divisions.

Education, active listening, patience, graciousness are needed for this process to work.  The decision making is done in good faith.  And, to use an old fashioned analogy, participants should embrace good sportsmen/women-ship.  Most of us would be happy with just good old-fashioned  civility.

It would be difficult to use a pure version of Quaker consensus-making in Congress since  the political process is based on debate with a win/lose scenario and since it is impossible to maintain anonymity.  The debate is made public via the world’s media. The decision is also made by vote, not consensual decision.  But, the attitudinal  aspects of this process can be adapted to the political process of seeking “common ground” even if it is only the size of the stamp. Once that is established, it might lead to a greater ground of agreement.

Campaigning and governing have different skill sets.  Campaigning lends itself to generalities and absolutes (you might say it’s war-like).  However, if our goal is to choose good public servants who know how to govern, those running for office need to prove their ability to compromise.  They need the skill set of compromise so they can govern well once in office.  This is the essence of statesman/women-ship.

The third article in “Harvard Magazine” is “Voter Suppression Returns” by Alexander Keyssar.  This excellent article tells the sad history of our “not so universal suffrage.”  It has always been a battle to extend the franchise, but we, to our credit, always have done so.  However, whenever we have extended the franchise, “voter suppression” tactics have increased in response.  Voter suppression laws are always aimed at constituencies that can not be outright disenfranchised, but can be intimidated into not voting:  the poor, the less privileged, and minority groups.  This is happening again today.

This attempt to take power away from voters is another way to concentrate political power in an elitist group.  It is just another way to redistribute the balance of political power  like the Super PACs  try to do supporting a political party and candidate with the power and influence of money.


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