What we are learning now is that non-profit political organizations connected to the network of tea party groups were not the only organizations targeted by IRS administrators. In the past few days, the Billy Graham Evangelistic Association sent an open letter to President Obama outlining its contention that it was subjected to discrimination because IRS agents investigated, audited and threatened them with the loss of their tax-exempt status. To the current administration the man who has appeared in Gallup’s Top-10 Most Admired Men in the World for 56 years needed to be investigated. So, too, did his son Franklin Graham’s non-profit charity, Samaritan’s Purse. The BGEA letter to the President states, “This is morally wrong and unethical – indeed some would call it ‘un-American.’”

Then, of course, there is the case of Z STREET, the right-leaning, pro-Israel, supporter of a one-state solution to the Middle East tensions. When this educational non-profit organization, headed by the courageous Lori Lowenthal Marcus, found out that the IRS was delaying and might deny their 501(c)(3) status because their viewpoint differed from the current administration’s policy on the Middle East, they sued. After two years, their case is now slated for its first hearing in federal district court in early July.

Many Americans are rightly appalled and confused about the scandal that continues to unfold. News media including The New York Times, MSNBC, CBS News, and even The Daily Show with John Stewart, are pressing for answers. They are not, however, pressing on the most important question. While the current voices denounce “What” has happened, while they wonder “How” it happened, while they demand to know “Who” was behind the decisions, we have yet to consider “Why” the IRS pursued what appears to some to be the aggressive pursuit of certain categories of non-profits.

The IRS itself explained in legal documents related to the Z STREET case precisely “Why” it believes it can proceed and do what it is doing. It’s time for everyone to know.

The U.S. Supreme Court issued a landmark ruling in 1983 in a tax-exemption case. In that case, the 8-1 majority held that

Entitlement to tax exemption depends on meeting certain common law standards of charity — namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy. Thus, to warrant exemption under § 501(c)(3), an institution must fall within a category specified in that section, and must demonstrably serve and be in harmony with the public interest.

The phrases “established public policy” and “public interest” are the phrases that the Court embraced in this case, Bob Jones University v. U.S. Because the appellee in this case, BJU, the private, Christian college in South Carolina, based student policies and decisions on race, it was “contrary to established public policy” and lost its tax-exempt status.

In court documents arguing for the dismissal of Z STREET’s case, the IRS cited Bob Jones University v. U.S. no fewer than seven times. Court documents filed by Z STREET argue that the IRS agent assigned to their case stated directly that, “These cases are being sent to a special unit in the D.C. office to determine whether the organization’s activities contradict the administration’s public policies.” Some will conclude that this special unit within the IRS is likely the same special unit that tea party organizations believe is handling their cases.

The IRS agent claimed there was a special unit and that unit was in D.C. Why? It is simply because the organization engaged in “activities [that] contradict the administration’s public policies.” The IRS cited case law to support their actions. The link to Bob Jones is explicit in court documents.

The Agency’s decisions to pursue individual organizations that oppose the administration’s public policies, is legally, morally, politically and ethically unacceptable. Perhaps more simply, however, it is linguistically unacceptable. Where Bob Jones lost its tax exemption for running afoul of “established public policy,” the IRS is targeting groups that disagree with the “administration’s public policies.” “Public policy” and “administration policy” are different worlds legally and linguistically. Either Congress or the courts, perhaps both, will ultimately provide the grammar lesson that the IRS so badly needs.

Bork died at age 85. In 1987, he became a national headline when President Ronald Reagan nominated him to the Supreme Court. He was a judicial conservative, a “strict constructionist.” He warned about the road America was embarking upon in neglecting its Constitutional principles, and saw doom and gloom ahead. He was grimly pessimistic about America generally, dreading modern liberalism’s grip on the nation. Liberalism, Bork insisted, was pushing America toward decline. We were headed to hell in a hand-basket. A decade after his failed confirmation, Bork authored a bestselling book tellingly titled, ”Slouching Towards Gomorrah: Modern Liberalism and American Decline.”

Bork had seen liberalism up close and full throttle—and at its open-throated angriest. During his unsuccessful confirmation hearings in 1987, he was plainly smeared. He was hysterically and unfairly portrayed by radical abortion feminists and the likes of Senator Ted Kennedy as an abuser and assaulter of women—a Neanderthal, a kind of political/cultural gargoyle. Liberals demonized Bork and railroaded his nomination, ushering in a whole new incivility and politicization to the judicial nomination process. Liberal journalists literally dug through Bork’s trash looking for anything to attack the man; they went to the nearby video store to find out what he rented.

“Hmmm,” they rubbed their hands together hopefully, “any X-rated flicks, Judge Bork?”

Alas, that wasn’t Robert Bork’s universe. They learned that Bork had an affinity not for pornographic film but for “Fred and Ginger” movies.

“Hah,” they hissed, “what a square!”

The left’s assault on Bork was unhinged, a precursor of behavior to come with later judges they disliked, particularly pro-life judges. Liberals were so nasty to Bork that the man’s name has become a verb: When liberals today vilify a conservative Supreme Court nominee, like a Clarence Thomas, we say that the nominee has been “Borked.”

The tributes to Bork at the time of his death revisited this sordid history. But none, to my knowledge, focused on the area where, sadly, I believe he was most prophetic—namely, his pessimism about American life and culture.

I never met Bork to discuss that pessimism, but a former Grove City College student of mine did. It was about 10 years ago. I was speaking at Ave Maria University School of Law in Ann Arbor, Michigan. My former student, Mark, was there. He was taking a class that semester with Judge Bork. He shared with me a dose of the usual Bork cynicism. Looking to buoy Bork a bit, my student optimistically told the judge that America’s future looked good because of promising demographics. He noted that committed evangelicals and orthodox Roman Catholics were having lots of children, whereas secular leftists were not. Surely, he assured Bork, this boded well for the culture, or at least the kind of culture Bork desired.

“No, no,” disagreed Bork. The judge conceded the positive demographics but noted that most of these evangelicals and Catholics send their kids to colleges dominated by these secular liberals, where all the ideals and values the youngsters learned at home and at their churches is rapidly undermined in four years—with the faithful parents unwittingly paying for the undermining. In short order, these conservative Christians support abortion and gay rights.

“We’re doomed,” Bork assured my student. America was on the road to Gomorrah.

Unfortunately, I think Robert Bork was exactly right.

For today’s liberals, who call themselves “progressives,” support for abortion has morphed into forcing fellow taxpayers to pay for it—and they plainly smear those who think otherwise as favoring a “war on women.” Their support for gay rights has morphed into gay marriage—with accompanying vitriol slung at anyone who disagrees.

Robert Bork was a man ahead of his time.

Judge Robert Bork, rest in peace—far away from the shores of Gomorrah.

He explained, to the GCC students assembled, his view of constitutional interpretation, which was a view held by most jurists until the impact of Progressivism and Legal Realism on the Court in the early 20th century. It was simple and straight forward. In interpreting a constitutional provision, one must be guided by the intent of the Founders or drafters. Judges should endeavor to determine, as best they could, what those who wrote the provisions intended to convey to future generations. Judges should not be activists, substituting their own views for those of the Founders. If the Constitution were to be deemed outmoded in some respect, it was up to the people and their representatives to use the amendment process to alter it. Changing its meaning was not the proper function of the judiciary. Bork was direct, clear and self-deprecating in that hour with GCC students.

That evening, before a packed basketball arena on the Grove City College campus, Bork spoke to a crowd of 2,500. He was introduced by a young lawyer from Pittsburgh who had escorted him earlier and was later to become the college’s eighth president, Richard G. Jewell. In introducing him, Jewell rehearsed Bork’s record of achievement as an undergrad at the University of Chicago and a law student a Yale, his years as a law professor, his work as Solicitor General, and his service on the D.C. Court of Appeals. When Bork rose to speak, he was greeted with loud and long applause.

He pulled no punches about what he had been subjected to by Senator Ted Kennedy and the Judiciary Committee. Readers may remember the tone of attack set by Senator Kennedy before the hearing had begun. Kennedy said: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution.” Bork responded to the vitriol in his campus address. He said, “Kennedy painted a nightmare of fascist repression and attributed it to me … We should have realized, but we did not, that the entire campaign would be pitched at this level.” Bork’s careful advocacy of intentionalism, his regard for the rights of states against federal intrusion, his conviction that the Constitution did not contain an expansive right to privacy, were all distorted into a bizarre series of claims that eventually resulted in his nomination being rejected by the Senate. In fact the gross and unfair vilification of a judicial nominee was so obvious to most over time that it gave birth to a new term—being “Borked.”

Having resigned his judgeship on the D.C. Court of Appeals, now free to express his opposition to the judicial activism that he believed was infecting the courts on all levels, his Grove City College talk contained the central theme that would later emerge in a more elaborate form in two key, best-selling books—“The Tempting of America: The Political Seduction of the Law” and “Slouching Toward Gomorrah: Modern Liberalism and American Decline.” There he set out a robust conservative philosophy of judicial interpretation which continues to impact constitutional decision-making today.

And what about current students in my two-semester course on U.S. Constitutional History? They have always read and will continue to read Judge Bork’s presentation delivered to a University of San Diego Law School audience. There he said: “I intend to speak to the question of whether a judge should consider himself or herself bound by the original intentions of those who framed, proposed and ratified the Constitution. I think the judge is so bound. I want to demonstrate that original intent is the only legitimate basis for constitutional decision … only by limiting themselves to the historic intentions underlying each clause of the Constitution can judges avoid becoming legislators … and ensure that the Constitution is law.” Bork dedicated the rest of his intellectual life to that and related propositions. By so doing he helped to thwart the assault on the integrity of the U.S. Constitution.

Judge Robert Bork, Requiescat in Pace.

A costly computer trading glitch involving market maker Knight Capital has intensified the debate over the effects and value of high-frequency algorithmic trading. The holding period for most of these strategies is measured in milliseconds. Specially designed computer algorithms blast out millions of orders a second. Most of these orders are merely probes, designed to gauge market interest. The vast majority are canceled almost instantly before they become actual trades. High-frequency traders are also adept at pocketing the rebates or fees that stock exchanges pay traders to route orders on their platforms.

Critics say these probes clog the system, crowding out legitimate orders. By making it more difficult to get execution of limit orders, for example, algorithmic trading disproportionately harms retail investors. And that’s when everything works the way it is designed! In 2010, the Dow dropped roughly 1,000 points in a couple of minutes due to a computerized trading error. The cause of the so-called “flash crash” still remains largely a mystery.

What can be done? After the “flash crash,” exchanges around the world installed additional circuit breakers to slow down wild swings. Many have suggested placing some sort of transaction tax on high frequency trading, and the S.E.C. is studying the risks these traders pose to the stability of financial markets. Like many proposed Wall Street reforms, however, these are incomplete solutions that fail to address the deepest roots of the problem.

In our forthcoming book, “God and Man on Wall Street: The Conscience of Capitalism,” Mark Hendrickson and I argue that Wall Street reform also requires nongovernmental regulatory solutions—additional self-restraint inculcated through culture-shaping institutions such as familial, civic, social, educational and faith communities. Along with an updated regulatory framework, these powerful influences make redemption possible.

Yes, technology promotes liquidity in markets. However, hubris is Wall Street’s Achilles’ heel, as participants frequently disregard man’s limitations for measuring and predicting future risks. It’s becoming clear that the existing technology infrastructure, i.e., the plumbing of Wall Street, can’t fully support the complexity of high-frequency trading.

While the “algos” have a right to push the envelope of innovation, they should not be permitted to hide behind complexity. Financial professionals should be required to provide a clear roadmap for how to monitor and disarm any innovations that could go rogue under extreme conditions. Shooting a rocket into space is only half the mission. It must also be equipped to safely return to earth.

Don’t get me wrong, I am an ardent believer in the benefits of financial innovation. Today, we take for granted many of these powerful innovations, like ATM’s, certificates of deposit and index funds. Many of today’s investors are also unaware of Wall Street’s so-called “Paperwork Crisis” of the 1960s, when increased trading volumes overwhelmed the industry’s paper-based, back-office record-keeping. Only more sophisticated computer and administrative systems resolved the settlement crisis.

The dominant belief on Wall Street today, however, is that added complexity enhances competitive advantage. Everyone assumes that complexity will serve as a barrier to competitors while superior intellect and resources will always enable one’s own firm to prevail. Within this worldview, culture and values are thus rarely seen as important sources of competitive advantage. “Smartness” often crowds out other important human virtues like empathy and compassion.

This attitude isn’t confined to Wall Street’s small band of sophisticated high-frequency traders. Dangerous complexity marked MF Global. One of its regulators conceded in Congressional testimony that the firm’s books were simply too complicated. That complexity outstripped MF Global’s inadequate risk controls. Some financial institutions have become so large and opaque that it’s difficult for any CEO to adequately oversee them—particularly during extreme financial shocks.

Monetary authorities around the world have also demonstrated the same hubris. Under this thinking, no interventionist strategy appears too novel or risky. In fact, throwing things at the wall to find out what sticks can seem downright proactive. This assumes, however, that the process of perpetual tinkering is both costless and harmless. There are boundaries to endless experimentation—a clear distinction between Dr. Salk and Dr. Frankenstein.

In many cases, regulators simply can’t keep up with the innovation arms race. Both non-banking lending and mortgage derivatives, for example, developed faster than regulators could police or even evaluate. Financial engineering is like blood doping in professional cycling: the innovators are always one step ahead of techniques for detection.

Because of this inherent gap, it is essential that we discuss character and values within the financial system. The risks to the broader economy place these issues within the realm of public trust. Some have said that the recent breakdowns demonstrate that trading no longer pits man versus the machines but rather machines versus machines. I would argue that, at its core, it’s still a battle of man versus himself.

In “Nature and Nurture: Limiting the Rights of Parents in Genetic Enhancement” (6,025 words), associate professor of sociology at Grove City College and a fellow for character & ethics with The Center for Vision & Values—Dr. Steven L. Jones—delves into some technical, moral, and legal aspects of genetic enhancement. “All of this has the potential to change the terrain of the old nature-nurture debate,” Dr. Jones observes in an essay that he hopes “will serve as a catalyst for further discussion of the sort of policy considerations that will need to be addressed as our society moves forward with genetic enhancement. If it also promotes dialogue between legal theorists, policy makers, and social scientists about the intersection of their respective domains, then so much the better.”

Media Inquiries: If you would like to reach Dr. Jones for comment, please contact him at SLJones@GCC.EDU.

(Download the PDF paper here.) 

Nature and Nurture:
Limiting the Rights of Parents in Genetic Enhancement

Steven L. Jones, PhD¹
Grove City College

In the fall of 2011 the national news media picked up on a story coming out of California that captures some of the new ground being broken in an old debate. Pauline Moreno and Debra Lobel are a lesbian couple raising an 11 year-old boy named Tommy. Since the age of three, Tommy has indicated to his parents that he wants to be a girl. Moreno and Lobel originally believed this was just a case of mild confusion, but Tommy was so insistent that when he came of age, they began giving him hormone blockers to delay the onset of puberty to allow him time to explore his gender identity and make a choice as to how he would live. Tommy, called Tammy, will remain in a prepubescent state until the age of 14 or 15 when Moreno and Lobel think he is more prepared to make the decisions ahead in terms of gender identity. Hormone therapy is a recognized part of gender transition protocols, but given the patient’s age, this case attracted significant attention and criticism even among proponents of gender reassignment.

The factors of this particular case can seem overwhelming. Pundits commented on everything from the general public’s confusion over gender reassignment to the appropriateness of gay marriage and parenting. There are also medical uncertainties here about the side-effects and long-term risks that may be associated with hormone blockers being given to an adolescent. These are surely pressing issues, but of particular interest here is the question of authority. Who has the right to make these decisions for a minor patient? The judgment of parents is clearly an important aspect of the story, but what is their relationship to the medical professionals that actually carry out the necessary procedures? What about the child; how much emphasis should be given to his or her concerns? Even the number of participants in the conversation is a matter of dispute. Ethicists, doctors, patients, mental health professionals, interest groups, legislators, and the parents themselves, all have not only an interest but in some cases a responsibility to be part of this and similar discussions.

NEW POSSIBILITIES

Even when the case is not quite so inflammatory, the issues here are layered and controversial. While each generation faces new medical possibilities, the 21^st century is likely to see an increase in both the number and the sheer scope of what is possible. Revolutions in biotechnology and gene therapy point promisingly towards new breakthroughs, not just in the therapeutic treatment of disease and injury, but in enhancing our cognitive and physical abilities beyond what we now perceive as “normal limits.” Indeed, they may cause us to altogether redefine ‘normal.’²

Consider the case of human growth hormone (HGH). The pituitary gland at the base of the brain controls the natural production and secretion of growth hormone. Individuals with pituitary deficiencies may be at increased risk for certain kinds of dwarfism or other stature-related conditions. Other conditions associated with HGH deficiency include certain congenital malformations or delayed sexual maturity. In the late 1960s Berkeley biochemist Choh Li unlocked the amino acids that make up growth hormone and successfully synthesized it in 1970. Synthesized human growth hormone, or somatropin, can be injected into individuals with naturally occurring growth hormone deficiencies to treat a variety of conditions, a therapeutic practice approved for children by the U.S. Food and Drug Administration in 1985.³ It is not just children with documented conditions that can benefit from a growth hormone regimen. Children with no diagnosable condition can also use HGH to increase their height, but even kids whose stature may fall perfectly within the normal range could use HGH to gain those desired inches. The same is true for young athletes who may already be taller than many of their peers. With the easy availability of HGH online, parents who want their children to have whatever advantage they can for whatever reason they deem appropriate have access to the potential benefits of HGH.⁴

Though various guidelines exist to protect against the misuse of somotropin and similar treatments, studies suggest that as much as 30% of growth hormone prescriptions in the United States are for uses not approved by the FDA. HGH is popular among body-builders and athletes for its ability to increase muscle mass, and its reputation as an anti-aging wonder is well documented. Online testimonials credit it with everything from tightening the skin to promoting better sleep, from increasing mental clarity to improving vision. There are even pyramid schemes in which one enrolls as a promoter of HGH and receives commissions from the producer for any recommendation that results in a purchase. Anecdotal evidence aside, there are documented benefits to an HGH regimen, but studies also show that the benefits may be only temporary. Additionally, there are known adverse effects associated with HGH, including increased risks of carpel tunnel syndrome, diabetes, and even cancer for some long-term users.⁵

Adults seeking to combat the effects of aging are perhaps the main target audience of those that promote off-label use of HGH, but they are not the only potential source of revenue. In 2007 the Public Broadcasting System’s Religion and Ethics Newsweekly reported the case of Mitchell Greenwood, a then-twelve year old boy who took daily injections of HGH to add a couple of inches to his projected height. Mitchell’s parents are both shorter than average (Neither was over five foot four inches tall.), and Mitchell’s doctor had suggested that without treatment, Mitchell may not have exceeded five foot one inch. Mitchell’s HGH regimen may add one or two inches to his height, but is unlikely to do more than that. It will certainly not make him above average height, and thus, given the expense and at least some measure of increased risk, the Greenwoods’ decision may be difficult for some to understand. In explaining their course of action, Mitchell’s mom opined that most parents will always do what they can to give their children every chance for success and happiness.⁶

This tendency of parents to seek a benefit for their child is at the heart of Harvard political theorist Michael Sandel’s concerns about an enhancement arms race as parents give in to the temptation to go off label in an effort to give their children a competitive advantage. If and when medical science permits anxious parents to increase their children’s height, muscle mass, or intellectual aptitude through genetic manipulation, what is to prevent them from making sure their children have just a bit more of the desirable characteristics than their neighbors’ children? But if the neighbors’ children are themselves enhanced, then we set in motion a potentially never-ending race to the top of the genetic pyramid. While many Americans would favor the use of something like HGH to help individuals on a therapeutic level, when these treatments are used to enhance otherwise “normal” individuals, the consensus breaks down. Discussing a number of concerns to this and other forms of genetic enhancement, Sandel warns that the quest for mastery over the genetic lottery that up to now has been an unavoidable aspect of parenthood may place nearly impossible burdens on parents. Additionally, while all parents hope for the best for their children before and after they are born, there is, in having children, an openness to the vagaries of chance. Indeed, the norm of unconditional parental love is in part a response to the fact that our children may not always be what we want them to be. The expectations surrounding genetic enhancement may undermine that norm if the child is not all the geneticist promised, leaving parents to grapple with a new level of frustration and disappointment.⁷ Some children may have to live with the realization that their parents are disappointed in them at the most fundamental level, that of their genes. Or consider the plight of the adolescent whose parents gave her every athletically-oriented enhancement available, but simply does not enjoy competitive sports. While these dynamics are part of family life in the status quo, genetic enhancement may lead them into uncharted territory in the relationship between parents and their children.

There is another dimension to the kind of treatments Sandel has in mind as well. In January of 2009 doctors in London delivered the first ‘cancer-free’ baby known to be born in Britain. Nine months earlier an embryo had been screened for the BRCA-1 gene, known to be linked to breast and ovarian cancer. The Medical Director of the Assisted Conception Unit, Dr. Paul Serhal, perhaps inadvertently gave rise to a set of policy considerations that have yet to be fully understood, much less explored: “The parents will have been spared the risk of inflicting [emphasis mine] this disease on their daughter. The lasting legacy is the eradication of the transmission of this form of cancer that has blighted these families for generations.”⁸ By this reasoning, parents who could have screened and treated an embryo to avoid an illness but did not do so for whatever reason have “inflicted” a disease on their children. Child abuse is currently defined as “an act, or failure to act, on the part of parent or caretaker that results in the death, serious physical or emotional harm, sexual abuse, or exploitation of a child, or which places the child in an imminent risk of serious harm.” Experimenting with untested or unproven genetic enhancement at the potential expense of the well-being of the child/subject would surely qualify as a form of abuse. But with the line between enhancement and therapy less clear than ever before, one can imagine a situation in which failure to intervene could be considered a potential form of child abuse. The law already defines withholding medical treatment from children as potentially criminal. Normally associated with things like refusing blood transfusions for religious reasons⁹, the “withholding of medically indicated treatment” addresses the “failure to respond to the infant’s life-threatening conditions by providing treatment (including appropriate nutrition, hydration, and medication) which, in the treating physician’s or physicians’ reasonable medical judgment, will be most likely to be effective in ameliorating or correcting all such conditions.”¹⁰

Other policy implications are equally murky. Could insurance companies refuse to pay for treatment if a given condition could have been avoided through various means (up to and including abortion)? Could medical professionals intervene over the wishes of parents if, in their reasonable medical judgment, they deemed it in the best interest of the child in terms of social advantages and competitive wellbeing, even if the child’s life is not under threat? As happens in this field, our technology may be moving faster than our moral, legal, and political reasoning.

Another set of concerns is raised by biomedical ethicist, legal expert, and policy advisor, Maxwell Mehlman. Taking it for granted that various kinds of enhancements will be available in the relatively near future, Mehlman focuses on how the advantages of enhancement will be distributed in a society with notable inequality. Free-market approaches run the risk of creating or at least reinforcing an actual genetic basis for inequality, and should, thus, provoke dialogue in a society concerned with equal opportunity.¹¹ Outright bans are also problematic in light of the difficulties associated with preventing those with means from either obtaining enhancements on the black market or traveling to parts of the world where the enhancement market is less regulated. Mehlman finds merit in licensing enhancements before they are made available to individuals, thus bringing into existence some sort of review board that could require a “socially beneficial” purpose before granting a license. The full scope of this board is left open in Mehlman’s analysis, as is any real discussion of what may constitute a socially beneficial purpose.

Government-funded distribution would likely be way too expensive to be palatable to taxpayers, but even if the government were to control enhancement distribution, Mehlman sees more problems on the horizon. Practices that offer whatever enhancements are necessary to satisfy individual citizen’s wants or perceived needs, so-called welfare egalitarian approaches would result in very unequal distribution with some people wanting more and more, while others, content with less, foot the bill. Resource egalitarians, those who favor equal distribution regardless of one’s starting position, still result in inequality in terms of outcome. Even John Rawls’ veil of ignorance in which goods such as enhancements are distributed without knowledge of the social location of the recipient does not satisfy the concerns of equality. Given that we may be talking about inheritable increased physical or mental capacity, the possibilities for expanding social inequality are considerable.

COMMODITIZED GENES

Even while the various ethical and social considerations are debated, the science moves ahead. Every month it seems as if new discoveries are made in terms of what genes are responsible for what characteristics or conditions. Increasingly, we are learning how to manipulate genes as well, turning them “on” or “off” so as to better control our own genetic future and that of our offspring. The commercial implications of all of this have not gone unnoticed. Numerous companies already advertise their laboratory’s ability to test potential parents for the likelihood that their children may inherit certain genetic conditions. For instance, 23andMe offers its clients the opportunity to test their own genetic material to find out their carrier status for more than 40 inheritable conditions, including Cystic Fibrosis, Tay-Sachs, and Sickle Cell Anemia. Starter kits are priced as low as $99, but can be bundled with other services such as a year-long subscription to their Personal Genome Service for just over $200. Their website is complete with testimonials from grateful customers and video tutorials. Other companies do not offer direct-to-the-consumer services (Their services must be ordered by a physician or genetic counselor.), but still advertise their ability to test for hundreds of disorders.¹²

Counsyl, a California start-up, has gone further, claiming that their efforts can help eradicate various diseases by weeding them out of the gene pool. Their website informs potential clients of the “new medical consensus” that all adults of reproductive age should seek genetic counseling before starting a family, and warns readers that they may unknowingly be carriers of genetic conditions that could affect their children. Clients are also informed that with testing, they can “prevent” diseases such as Spinal Muscular Atrophy through the use of pre-implantation genetic diagnosis done in conjunction with in vitro fertilization. Counsyl’s Universal Genetic Test offers clients the opportunity to prevent diseases that they assure you cannot be cured. Their mission is “to scale up the Jewish community’s successful campaign of universal carrier screening for Tay-Sachs by expanding coverage and accessibility.” To this end, Counsyl’s value statement affirms that “[they] believe that genetic counseling is a human right, not a luxury … [that] children deserve healthy lives, free from genetic disease … [and in] universal access, especially for those most in need.¹³ Counsyl markets their tests to both doctors who join their network, and to individuals who can, through their website, find a participating physician or encourage their own doctor to join Counsyl’s team. Characterizing their efforts as a campaign against inheritable diseases, the website explains:

The organization was founded by social entrepreneurs and philanthropists with the audacious belief that every child deserves a chance in life. It is something new, born of the realization that cutting-edge science and market forces can actually increase equality and promote social justice. It is a cause, a campaign to finally end the needless suffering of preventable genetic disease. And most of all, it is you. Call us idealistic, but we believe that everyone loves their children and will do the right thing when it comes to safeguarding their future.¹⁴

PARENTAL AUTHORITY

All of this has the potential to change the terrain of the old nature-nurture debate. In trying to determine why people do what they do, the old, probably over-simplified answers stressed either one’s biology or the environment in which one was raised. The assumptions behind whole academic disciplines sometimes tilt toward one explanation or the other. Sociology, for instance, might be seen to stress the nurture side of the equation, while biology may put more emphasis on nature. Even as the whole binary structure of this debate gives way to far more nuanced positions, medical science may be undermining the old logic. Nature, it was widely assumed, was more fixed than nurture. Everyone recognized that social environments, the nurture side, could vary across time and space. Indeed, that was part of its explanatory power. Social norms and values vary from society to society, and thus, people behave differently. But now nature itself is at least potentially malleable. Gender, for example, may be a social construction that varies with time and place, but now sex itself, as a biological characteristic, is subject to change. This may have profound implications for how we think about a number of issues, not least of all the relationship between children’s rights, parental authority, and the law.

With reference to the control over the environment in which children are raised, there exists a broadly recognized and affirmed set of cultural and legal assumptions that give considerable discretion to parents. Justice O’Connor clearly stated as much in Troxel v. Granville, a case affirming the authority of parents to regulate the visitation rights of grandparents: “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”¹⁴ She went on to cite some 75 years of precedent upholding not just the rights of individual parents, but the foundational assumptions in which they are rooted. The broad range of issues covered in her narrative is instructive in that it shows how consistently parental prerogatives have been recognized and upheld. O’Connor cited two cases from the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters.¹⁵ The right of parents to establish and maintain a home in which they directed the upbringing of their own children was recognized in Meyer, while Pierce, in overturning Oregon’s law requiring all students to attend public schools, stated clearly that “the child is not the mere creature of the state; those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations.”¹⁶

American jurisprudence is not alone in this recognition of parental prerogatives. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, established education as part of the “inherent dignity and inalienable rights of all members of the human family” and one of the means through which freedom, as the “highest aspiration of the common people” will be achieved. Article 26 declares:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.¹⁷

Though the Declaration is without ambiguity, the practice of education by member states has a far murkier past. The third paragraph, establishing the “prior right” of parents to direct what sort of education their children receive has been especially problematic, even in the enlightened and rights-conscious West.

The Court has also upheld parental prerogatives in areas other than education. O’Connor cited the Court’s confirmation of the Constitutional dimension to parental rights in Prince v. Massachusetts, a 1944 case that recognized the rights of parents even as it upheld a Massachusetts law restricting the abilities of children to distribute religious literature in public spaces. Parental control over the medical treatment of children also has a long history in American jurisprudence. For most of American history it was all but a non-issue. Of course, parents were the primary decision-makers for their children, at least in terms of consent, if not for the efficacy of treatment options. As early as 1912 a state court in Pennsylvania ruled that parents could refuse their consent for a surgical procedure aimed at remedying the effects of rickets on the legs of a seven year old boy, Tony Tuttendario. The Society for the Prevention of Cruelty to Children sought permission in the courts to have Tony’s care entrusted to them so that his parents’ objections would be rendered moot. The Pennsylvania court ruled against the Society’s request, stating that the uncertain prognosis for the surgery coupled with their respect for the natural love found between parents and children required a rejection of the “Spartan rule” that children belonged to the state.¹⁸ Later courts, under different circumstances, found that the rights of parents could be limited if the wellbeing of the child was threatened by parental action, or in some cases, inaction. The well-known cases of Jehovah Witnesses parents who refuse blood transfusions for their children, a position they take from their reading of scripture, confirm that the rights of parents to control the medical care of children are not absolute, even when foundational issues such as religious freedom are at stake.¹⁹

Parham v. J.R. More approached the ground under discussion here in that it dealt with the rights of parents in the medical care of their children. In Parham, the Supreme Court upheld the rights of parents when it comes to determining some aspects of their children’s medical care, and reaffirmed the basic supposition that parents would act in the best interests of their children.²⁰ These cases, and others cited by O’Connor, establish an “extensive precedent,” making it clear that “the Due Process clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”²¹ Of course, there have been exceptions to the reasoning O’Connor found so prevalent in the Court’s history. Justice Stevens’ dissent in Troxel recognizes that parental liberties might, in some cases, not serve the best interests of their children. In his view the Court had “never held that the parents’ liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm.”²² Justice Douglas’ dissent in the 1972 Yoder case is also interesting. He argued that self-determination rights of “mature minors” should be constitutionally protected when they come into conflict with the rights of parents, and though the specific context of his dissent focused on education (nurture), the issues he raised have implications well beyond schooling. A number of academic fields have, over the past several decades, come to see children’s input, and perhaps consent, as critical to legitimate decisions regarding their welfare. As a general principle children are still subject to the legal authority of various adults (parents or various agents of the state), but increasingly, legal and political theorists, as well as child development experts from various fields, have held that children should be more involved in decision-making regarding their welfare, a move that may have inverse implications for the rights of parents.

Advances in modern medicine like those described earlier in this essay have made these issues even more difficult. We now have the ability to shape children through surgical and/or medicinal treatments that would scarcely have been imaginable to earlier generations. Indeed, a mid-century study of the connections between law, public policy, and public opinion as they related to parental authority asked only one question about medical care, focusing instead on issues related to child labor and education.²³ Now, with so many heretofore-unimagined capabilities in front of us, there are more questions than answers. How then should we think about the rights of parents in these contexts?

Historically most models of the family have been based on a clear hierarchy with the rights and autonomy of parents clearly trumping those of the child. The zone of autonomy and privacy that surrounded family was a recognized social space, and though the state could intervene into this space, the justifications of such intervention had to be compelling indeed. Today the recognition of parental authority is still the norm, though I believe that advances in medical science raise troubling questions about limitations on parental authority. In her discussion of the United States Supreme Court’s decision in Parham, Alicia Ouellette noted that though this is usually recognized as a case endorsing parents’ rights, the Court also recognized that the rights of parents are not necessarily coterminous with those of children, a recognition that helped lay the groundwork for a legal revolution in our thinking about how to evaluate the best interests of children. She advances the “non-subordination principle” to address the restrictions on one person’s liberty required to recognize and protect the liberty of another.²⁴ The exact parameters of this or similar principles are the subject of many a political theory class, but applying it to the parent-child relationship is particularly difficult given the responsibilities of parents to raise their children. Every decision made by parents can be understood as affecting the future of the child, and in that sense may limit their ability to make free and unfettered decisions when they reach the age of legal adulthood. Recent debates over the proposed ban on circumcision in San Francisco revolved around just these claims. Circumcision is often carried out before infant males even leave the hospital, obviously well before any sort of consent from the child could even be discussed, much less made determinative. Once done, the procedure does render future deliberation by the child on this permanent issue of bodily integrity moot. Accordingly, critics of the procedure held that the interests of the child were being subjugated to the rights or norms of parental authority.

Ouellette holds that the non-subordination principle “should be embedded in legal models for evaluating the scope of parental power,”²⁵ explicitly challenging the hierarchical model of decision-making in which the concerns of parents are paramount. Such approaches are part of a larger shift in family law towards recognizing children as full partners in family life with interests of their own.²⁶ Going further, Ouellette identifies several models of the family that she believes may be helpful in that they recognize the child as a complete individual within a functioning social unit in a way that approaches focusing on parental rights do not. These models, many of which hold that parenthood may be understood as a form of trust in which the best interests of the child at some future date (when they have reached the age of majority, for instance), often protect autonomy interests for the child above particular interests of the parents. Thus, parental decision-making that would limit the future autonomy of the child should be carefully considered, even regulated, by the state out of respect for the child’s interests later on. In her work, this includes so-called shaping cases in which children are subjected to often invasive medical procedures to fit parental desires or expectations. The use of human growth hormone is a case in point.

With Ouellette I would limit the ability of parents to physically shape their children’s bodies and genetic inheritance more broadly, but her reasoning does not support the family policy goals I want to recommend. Limiting the rights of parents in the nature sphere, which Ouellette and I both advocate, could be prologue to further restrictions on parents in the nurture sphere. Parental prerogatives in education, for instance, or religious training, could be undermined if parents are restricted from making decisions for their children that might limit the child’s ability to choose for themselves later on, one of the guiding principles of those family models that treat parenthood as a trust.²⁷ Protecting the future autonomy of children is a worthy goal, but it should not trump the prerogatives, and duties, of parents to raise their children in accordance with deeply held religious, philosophical, and political convictions. At the bottom of Ouellette’s position is an understanding of individual personhood rooted in, and pointed towards, the fully autonomous individual. Actions that limit the future autonomy of the child, in these cases the right to control one’s own body, are violations of this goal.

While some of her analysis is compelling, there is reason to be concerned about what her models would do to undermine the private social space that surrounds the natural family and more particularly the rights of parents to raise their children in accordance with deeply held religious and philosophical convictions. There is potential for abuse here to be sure, but surely policy preferences that favor familial structures with a proven track record of rooting children in the communities and norms that most contribute to their well-being should not be too quickly discarded. The social-scientific evidence that sees people, and particularly children, as needing deeply held community attachments, including obligations and norms that potentially limit Ouellette’s understanding of their autonomy, is more compelling than models built on one particular model of restless individualism. Social science evidence confirms that people benefit from attachments to authoritative communities, including families, which help pass on spiritual, philosophical, and moral precepts. These communities are critical to our wellbeing and thus, policies that, even inadvertently, weaken these communities and institutions may undermine the full potential for human thriving. Legal and philosophical understandings of the family that lean towards the emancipation of children from their parents, or that see the sort of thick ties parents often try to foster between their children, and say, religious communities, as potential limitations on an individual’s future autonomy, need to be checked against an impressive body of research from the social and behavioral sciences. There is an emerging consensus that children do better on a host of indicators ranging from school performance to avoidance of drugs and delinquency when they have strong attachments to primordial institutions such as the family and the church. While models of the family that protect the future autonomy of children are not necessarily antagonistic to such institutions, it is also true that such models are a relatively untested experiment, the social costs of which could be quite high.²⁸

This short essay has raised more questions than it has answered, but I hope it will serve as a catalyst for further discussion of the sort of policy considerations that will need to be addressed as our society moves forward with genetic enhancement. If it also promotes dialogue between legal theorists, policy makers, and social scientists about the intersection of their respective domains, then so much the better.

Endnotes

1 I would like to thank The Center for Vision & Values at Grove City College for their generous support of this project.

2 Maxwell Mehlman, Wondergenes: Genetic Enhancement and the Future of Society (Bloomington, IN: Indiana University Press, 2003). Mehlman identifies a number of “revolutions” in various fields that together open new horizons for medical treatments. These include breakthroughs in gleaning genetic information from DNA samples to new therapeutic possibilities through drug production based on recombinant DNA. Mehlman also discusses behavioral genetics, that is, the possibility of changing people’s behavior by altering their genetic makeup.

3 HGH is also used to treat adults for various conditions including Short Bowel Syndrome and AIDS Wasting. It is also used by athletes and bodybuilders to increase muscle mass and performance, though that practice is not sanctioned by the FDA. As such, numerous websites offer to sell HGH without a prescription. In 2007 actor Sylvester Stallone was arrested in Australia for smuggling in nearly 50 vials of HGH, which he subsequently and defiantly admitted using to prepare for one of his recent action films. These uses of HGH are not under direct consideration here.

4 There are guidelines in place for who can be prescribed HGH for stature-related issues. Children with diagnosed conditions such as Turner syndrome or Prader-Willi syndrome are approved candidates, as are children who are more than two standard-deviations below the average for their age and sex.

5 Thomas Perls, Neal Reisman, and S. Jay Olshansky, “Provision or Distribution of Growth Hormone for Anti-Aging: Clinical and Legal Issues,” Journal of the American Medical Association, 294, 16 (October 2005). See also S.J. Olshansky and T. Perls, “New Developments in the Illegal Provision of Growth Hormone for ‘Anti-Aging’ and Bodybuilding,” Journal of the American Medical Association, 299, 23 (2008).

6 Unfortunately, the Greenwoods’ concerns are not without foundation. In a consumer-oriented, image-conscious society like ours the psychological and social wellbeing of children, to say nothing of their opportunities for material success, are surely impacted by characteristics such as height. Studies show benefits associated with increased height range from subjective measures such as increased enjoyment of life and happiness, and also related to objective measures such as higher incomes. There are numerous variables at play in the relationship between height and economic success, but one should not too quickly dismiss increased self-esteem and less risk of discrimination faced by taller individuals. These are exactly the sort of factors that families such as the Greenwoods take into account in making their decisions. See Anne Case and Christina Paxson, “Height, Health, and Cognitive Function at Older Ages,” American Economic Review Papers and Proceedings, 98 (2008):2. See also Angus Deaton and Raksha Arora, “Life at the Top: The Benefits of Height,” National Bureau of Economic Research, Working Paper Series # 15090 (2009).

7 Michael Sandel, The Case Against Perfection: Ethics in the Age of Genetic Engineering (Cambridge, MA: Harvard University Press, 2007).

8 “Cancer Free Baby Born in London,” CNNHealth Website, posted January 9, 2009 (accessed on January 26, 2012).

9 On religious liberty and medical treatment see Courtney Campbell, “Religious Liberty and Authority in Biomedical Ethics,” in Church-State Issues in American Today, eds. Ann Duncan and Steven Jones, 247-277 (Westport, CT: Praeger Press, 2008).

10 42 USCA 5106g (Jan. 2011)

11 It is worth noting here that those societies that promoted the idea that some members were genetically superior to others are among some of the most reviled of the contemporary period, from World-War-Two-era Germany to Apartheid to the Jim Crow South.

12 See 23andMe Website at www.23andme.com (accessed March 1, 2012).

13 See Consyl Website at www.counsly.com, (accessed February 27, 2012).

14 Troxel v. Granville, 528 U.S. 99-138 (2000).

15 Meyer v. Nebraska, 325 U.S. (1923).

16 Pierce v. Society of Sisters, 268 U.S. (1926).

17 UN Declaration of Human Rights. http://www.un.org/en/documents/udhr/index.shtml#a26.

18 Walter Wadlington, “Medical Decision Making for and by Children: Tensions Between Parent, State and Child,” University of Illinois Law Review 1994: 311-336.

19 Prince v. Massachusetts, 321 U.S. (1944).

20 Parham v. J.R., 442 U.S. (1979).

21 Troxel v Granville 528 U.S. 99-138 (2000).

22 Id. (2000).

23 Julius Cohen, Reginald Robson, and Alan Bates, Parental Authority; The Community and the Law (New Brunswick, NJ: Rutgers University Press, 1958). Interestingly, the study found that the public was quite willing to put aside the rights of parents if the well-being of the child was at stake, but the question itself was formulated in such a way as to make that the obvious response.

24 Alicia Ouellette. “Shaping Parental Authority over Children’s Bodies.” Indiana Law Journal 85 (2010): 955-1002.

25 Quellette, “Shaping Parental Authority,” 985.

26 Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989).

27 Some political, educational, and legal theorists have already moved in this direction when it comes to religious schooling. For discussion, see Steven Jones, Religious Schooling in America: Private Education and Public Life (Westport, CT: Praeger Press, 2008).

28 See, for example, Hardwired to Connect: The New Scientific Case for Authoritative Communities (2003). This report was a joint effort of the Institute for American Values, Dartmouth Medical School, and the YMCA of the United States that reviewed both medical science, especially neuroscience, and the social sciences to identify a new scholarly consensus around the benefits of strong attachments between individuals and communities.

In his “Disquisition on Government,” which appeared two decades later, Calhoun explained, “It is this negative power—the power of preventing or arresting the action of the government—be it called by what term it may—veto, interposition, nullification, check, or balance of power—which, in fact, forms the Constitution.”

In short, a valid Constitution should allow any of its constituent parts to interpret its terms any way it likes, regardless of the Supremacy Clause, or those pesky introductory words to the acclaimed document, which state, “We the People”—or the first Article of the Constitution, which assigns to Congress the authority to make national law. More remarkably, Calhoun admitted in a letter written to a colleague in 1832 that the real inspiration for his nullification doctrine was safeguarding the power of the South to preserve its peculiar institution: slavery. Clearly, depraved intentions spawned this nefarious constitutional construction by Southern elites: preserve your political power by any means possible.

Interpretations like this lurk beneath the Obama administration’s recent non-enforcement of federal law. For instance, President Obama’s Department of Justice declared in 2011 that it regarded The Defense of Marriage Act (DOMA)—duly enacted by a majority in Congress, to use the president’s sophomoric constitutional reminder—to be unconstitutional and would no longer defend it in court. Oh, really? What happened to Article Two, Section Three of the U.S. Constitution, the part that enjoins the president to “take Care that the Laws be faithfully executed?” DOJ insisted it would continue to “enforce” the law, but still has managed to ignore it in several cases involving immigration and gay marriages, as pointed out by Representative Vern Buchanan (R-Fla.), one of which involved the department “vacating” a decision made by the Board of Immigration Appeals involving a gay man. And “not defending” a law in court on constitutional grounds is tantamount to lack of enforcement, because the bottom line is: if you don’t like federal law, simply don’t enforce it. Which is the federal version of nullification.

Nowhere has this nullification doctrine been more apparent or more maddening than the federal government’s refusal to enforce national immigration laws. Further, the Obama administration has announced that it no longer will abide by the so-called 287(g) agreements with the state of Arizona. These agreements permitted state and local authorities to assist in the enforcement of federal laws on immigration. Of course, if you have no intention of enforcing the law anyway, federal authorities certainly don’t want states to do it in their absence. Also, since national policy in this area has been significantly determined by executive order—since the president’s de facto amnesty announcement for children of illegal immigrations—neither Congress nor the American states seem to have any role to play.

And the nullifications keep on coming. On July 12 the Health and Human Services Department announced that it was granting waivers to certain states from the work requirements of the 1996 Welfare Reform Act, perhaps the signature achievement of the Clinton administration. Republicans reacted with predictable outrage, but also with a constitutional case to make, centering on HHS’ lack of legal authority to administer by regulation what it is denied to do by law, one that has been regarded by most observers as a huge success. As far as HHS is concerned, none of that matters, which is another egregious case of what critics have termed “executive overreach.”

But the HHS decree represents much more than that. In fact, there has been considerable commentary on Obama administration policies under the rubric of the “imperial presidency,” a term that dates back to the 1960s. However, the real doctrine is more threatening and the dangers are far deeper; the Obama-ites are not just doing their “imperial presidency” thing; they’re practicing nullification, with designs on power as suspect as those that inspired that interpretation’s notorious roots. Indeed, if the dark visage of John C. Calhoun were somehow to encounter the administration of Barack Obama, one can easily imagine a thin smile of approval cracking his stony expression. Nullification remains alive and well, though this time in federal clothing.

Although the decision, crafted by Chief Justice John Roberts, contains much “bad news,” there is some “good news” for those who favor limited government.

First, the good news: The court found that the individual mandate, that provision requiring Americans to purchase health insurance or pay a penalty to the U.S. government, could not be found constitutional under the Commerce Clause. In this portion of his opinion, Roberts helps erect a constitutional barrier to a further expansion of the clause:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority …. People, for reasons of their own, often fail to do things that would be good for them or for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.

This holding and analysis is extremely important for future cases where Congress tries to cavalierly invoke the Commerce Clause as authority for expanding federal power. As the dissenters acknowledge, this part of the opinion keeps the Commerce Clause from becoming a “font of unlimited power.”

The bad news is that following his strong limited-government opening, Roberts strained—or so it seemed—to find another basis upon which to uphold the individual mandate, thus saving Obamacare from having its linchpin pulled out. By doing so, he furthered an uncontrolled and ill-conceived effort to move Americans toward a European-style welfare state. What was his basis for upholding the individual mandate?

In a flimsy and unconvincing argument, Roberts concluded that the individual mandate can be upheld under Congress’ power “to lay and collect taxes.” Here are Robert’s own words: “[T]he mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”

What’s wrong with this?

First, the word “mandate” does mean “an authoritative command.” To say that it does not amount to a command is to deny the plain meaning of the word. Secondly, Justice Roberts’ attempt at an analogy is flawed. Persons who buy gasoline or earn income are engaged in an activity which the government is permitted to tax. Persons who do not purchase medical insurance are not engaged in an activity. So there is no analogy between buying gas and being taxed and not buying medical insurance and being taxed.

Readers of Justice Roberts’ opinion must be surely scratching their heads here. Isn’t this the same justice who earlier, in the Commerce Clause portion of the opinion, pointed out that the government could not properly claim to regulate “inaction” by persons? Now, he contradicts himself by claiming that the government can tax “inaction.”

There are other problems with calling the individual mandate a taxing provision. Foremost among them is that Congress itself framed the requirement to purchase insurance as a “mandate” enforced by a “penalty” and not as a “tax.” The distinction is a crucial one because Justice Roberts is attempting to argue that the individual mandate is a taxing provision, which Congress enacted under its taxing power. If, instead, the individual mandate provision is exactly what it claims to be—a requirement that persons purchase health insurance with a penalty attached—then the provision is not a tax. What makes his verbal shenanigans even more puzzling is that Justice Roberts, elsewhere in the decision, emphasizes the importance of deferring to the intent of the legislature. But in this part of the decision he ignores the very language that Congress used to describe its action—mandate and penalty. In place of the words that Congress chose, he substitutes his own language. As the dissenters point out: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Furthermore, Justice Roberts seems to minimize the coercive power inherent in “taxing” Americans who decide not to purchase health insurance. He says: “If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.”

True, but, what will happen if the individuals refuse to pay the tax? Then they will necessarily have to be treated as any other taxpayers who refuse to pay—the full force of the federal government will be applied to collect the tax.

The point is that whether a “tax” or “penalty,” the exaction is a heavy burden on low- and middle-income Americans for a product that they may or may not want to “purchase.” The Congressional Budget Office projects that by 2017, tax or penalty revenues likely to be collected will total $4 billion annually. Also, the Court points out that by 2016 individuals making as little as $35,000 per year could be paying the government $60 per month under the law’s dictate.

In summary, Justice Roberts started out well by limiting the power of the federal government under the Commerce Clause. However, he finished poorly when he engaged in verbal contortions to save the hastily drawn healthcare legislation. In the process, however unwittingly, he preserved this blatant legislative attempt to extend the power of the federal behemoth into the private medical decisions of ordinary Americans.

Click here to read the article at the Post-Gazette’s website»

Why should banks be treated differently than other financial institutions? Financial intermediaries, including banks, take risks so that investors can earn higher returns on their money. Banks, however, differ from other financial intermediaries, such as mutual funds and brokers, in that deposit insurance makes it possible for them to guarantee that depositors won’t lose their money, regardless of how much risk the banks take. Investors whose money is at risk will put pressure on a financial institution to limit risk, but insured depositors have little motivation to monitor the riskiness of a bank’s portfolio.

Many banks, as well as other financial institutions, invested in too many risky assets prior to September 2008, which led to the financial crisis. The financial crisis and government’s response to it are why we have a stagnant economy with persistently high unemployment four years later. If government had not stepped in to rescue bankrupt firms, the economy would have recovered more strongly from the recession. A capitalist economy works well if firms that use resources efficiently make profits and those that use resources inefficiently lose money and eventually sell their assets to others who will find a more valuable use for to them. This process of creative destruction plays a vital role in promoting economic growth and prosperity as resources are continually redirected toward those uses that most satisfy the demands of consumers.

Rather than receiving bailouts, it would have been better if American International Group (AIG), General Motors and Citigroup were left to resolve their own financial problems, which would most likely have meant bankruptcy and liquidation. Citigroup, however, is different than AIG and GM in that a substantial share of its liabilities were deposits, which were insured by the Federal Deposit Insurance Corporation (FDIC). Investors in corporations like AIG and GM are warned that they might lose some or all of their investment. Banks, by contrast, promise to return all money deposited, and depositors have confidence in this promise.

The government grants banks privileges that other businesses do not have, including deposit insurance and the power to create legal tender money. As my fellow economist, Dr. Shawn Ritenour, pointed out, MF Global got into big trouble for using money from its customers’ accounts for its own trading, yet banks do this legally all the time. If banks are going to lend out their customer’s money, they should lend it as safely as possible, so there is little question that it will be paid back. A bank, unlike MF Global, can get away with trading using its customers’ money because the FDIC, which ultimately is backed by the Federal Reserve, guarantees that customers will get their money back, even if the bank does not have enough in reserve to meet requests for withdrawal. Regardless of how much money the FDIC needs to bail out bank depositors, the Federal Reserve can create it.

Not only are depositors covered by insurance, but the federal government has a longstanding practice of not allowing large banks to fail, providing bailouts at taxpayer expense. It would be better if government did not rescue failing banks and if deposit insurance were scaled back to cover only accounts of small value. If banks did not have the implicit or explicit backing of the federal government, the need to attract depositors and creditors would limit the risks they would take. If deposit insurance only applied to small accounts, the risk to taxpayers would be much less, and large depositors would put pressure on banks to limit the riskiness of their investments.

It may be unrealistic to expect the government to scale back deposit insurance or stop bailing out large banks that are on the verge of failure. For that reason, the next best alternative is to implement the Volcker rule to prohibit proprietary trading by banks as well as maintaining more stringent controls over the size and composition of banks’ loan portfolios. This will greatly reduce the likelihood of another financial crisis like what we have just been through.

The problematical aspect of Marbury is that it really isn’t the best case to provide hints about President Obama’s strategy in dealing with what likely will be a judgment that declares unconstitutional at least part of the Affordable Care Act—specifically, the individual mandate requirement. A much more instructive case was decided in May 1935 and involved striking down a law that, if anything, dealt with a much more egregious invasion of the private sector by an act of Congress, the National Industrial Recovery Act, which was part of the original New Deal.

The NIRA provided for “codes of fair competition” drafted by trade or industrial groups, and covered virtually every aspect of business enterprise, including standards on wages, prices, working conditions, trade practices and the like, justified by the Commerce Clause of the Constitution. Under the auspices of this mammoth and unwieldy piece of legislation, a group of defendants who operated a slaughterhouse and sold chickens to kosher retailers had been convicted of violating the code’s wage and hour stipulations, ignoring the so-called “straight-killing” requirement, and as a result selling an “unfit chicken.”

This constitutional imbroglio, Schecter v. United States, was destined to go down in history as the “sick chicken” case and occasioned strong language from the court about a law that, like Obamacare, was collapsing from its own internal contradictions and widespread unpopularity. Indeed, Chief Justice Hughes declared that “extraordinary conditions do not create or enlarge constitutional power”—remember, this was during the Great Depression—and that Congress had abused its “essential legislative function.”

If all this sounds familiar, it should, but things really got interesting after the law was struck down. By the end of his first term, President Roosevelt saw the court declare unconstitutional 10 of 12 major pieces of New Deal legislation, mostly on the grounds that Congress had overstepped its constitutional boundaries. FDR was incensed, and as a result, early in his second term proposed measures that would have increased the size of the court, with the justification that the bench’s elderly members needed assistance to deal with the Supreme Court’s heavy workload. Roosevelt argued that old judges were no longer able to perform their duties, and “little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation.” Hence, newly appointed younger judges, more attuned to the times and administration policy, were needed.

This “packing the court” scheme was too clever by half and was greeted with howls of indignation by conservatives and liberals alike; the president’s proposal went nowhere. However, though FDR lost that legal battle, he won the constitutional war. In a series of cases decided during the spring and summer of 1937, the Supreme Court changed its direction drastically in favor of expanded federal power, a transformation of judicial opinions cited as “the switch in time that saved nine” (that is, nine members of the court). The Supreme Court didn’t seriously challenge Congress again on the Commerce Clause until the 1990s.

All of which suggests that although President Obama’s April 2 statement was literally false, or disingenuous to say the least, his clumsy attempt to perhaps bully the Supreme Court has a powerful historical precedent. And trying to back down from his initial statement changes nothing at all, because his words are unspinnable; the president expressed his constitutional sentiments exactly. The question is: Will his tactic work? Will this convoluted, “sick law” inspire a Supreme Court decision on the constitutional limits of the federal government, or will the Supremes cave to administration rhetoric?

Americans will have their answer by the summer of this very crucial election year. In the meantime, the ghost of FDR hovers over the decision-makers in the highest tribunal of our republic.