September 14, 2009
Fact-checking is almost the new national pastime, especially involving President Obama's health care proposals. But what is there to check? What words do we check? Obama's "plan" is not yet published, and may not even exist in written form. When it comes to written, proposed legislation, there are multiple plans to choose from; which one is the plan? More significantly, the most important words involving any piece of modern legislation come after that legislation has been signed into law.
Let's just say that you use HR 3200 as a surrogate for Obama's plan. It definitely has words - 1,017 pages worth. Here is what Congressman John Conyers said about it.
"What good is reading the bill if it's a thousand pages and you don't have two days and two lawyers to find out what it means after you read the bill?"
To appreciate this statement, you should know that Conyers has been in Congress since 1965; only John Dingell, the bill's sponsor, has served longer in the House. You should also know that Conyers has a law degree. And now he is chairman of the House Judiciary Committee.
If a legislator of 44 years, himself a lawyer and in fact chair of the judiciary committee, along with two other lawyers cannot figure out what this bill means, what hope do you, or I, or any "neutral" fact checker have of figuring it out?
William Jacobson, a professor of law at Cornell Law School, chronicled his efforts to understand this "dense House bill" in the American Thinker. He used a "dartboard" method to randomly select pages to analyze, stopping after seven such pages. "I will try to explain what the section and provisions on the page mean. There is no guarantee that I will be able to do so, as some of these provisions may be incomprehensible."
"Incomprehensible" to a law professor. Also incomprehensible to an experienced legislator and lawyer working with other lawyers. Yet we are supposed to believe, say, the Huffington Post, when it interprets Obama's health care plan for us?
This is not just a health care issue; it is an issue with all modern legislation. That is, the legislation passed by Congress and signed by a President become ink blots for those left to interpret it in the future. The money to fund the legislation is quite real, but the meaning of the legislation is more like quantum mechanics: there is no "there", just probability distributions.
We can discuss, for example, whether illegal immigrants would be covered under HR 3200. They effectively would be, since there is no mechanism in the legislation to check on citizenship, and the Democrats twice defeated amendments to put in such mechanisms.
But wait -- what if they do put in such mechanisms? Remember California's Proposition 187? As reported by CNN,
"Approved by voters in 1994, the proposition would have denied health care, education and welfare benefits to illegal immigrants. Almost immediately, Judge Mariana Pfaelzer granted its opponents' request for a restraining order, which prevented it from taking effect."
The final ruling by this Federal Court judge struck down almost all of the proposition, saying states can't make such rules. So much for whatever words were in the proposition.
The 14th Amendment to the Constitution provides another example. It has these words: "No State shall... deprive any person of life, liberty, or property, without due process of law..." Those words, written in 1868, were interpreted by the US Supreme Court in 1973 to mean that no state shall outlaw abortion. Later courts re-affirmed that interpretation, and in fact made sure that states cannot even make laws against sticking a scissors into a baby's skull and sucking its brains out during the birthing process, if that baby's head has not yet left the birth canal.
That's a pretty expansive understanding of "liberty", don't you think? Not too many other activities have made the list. Taking contraceptives has, but not taking drugs, for example. Also, the word "property" doesn't get near the respect that "liberty" does. See the Kelo case, for example.
Many of the same people who see a right to abortion in the 14th Amendment do not see a right to keep and bear arms in the 2nd, despite the 2nd saying, "the right of the people to keep and bear Arms shall not be infringed." The Supreme Court did rule that "the people" have such a right, by a squeaker ruling of 5-4 in 2008.
Or how about the 1st Amendment, where it says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." As reported by CNN, the US Supreme Court took those words to mean
"... that prayer does not belong in public schools, even if students initiate and lead the prayers. The court ruled 6-3 in a Texas case that public schools cannot allow student-led prayer before high school football games..."
It should go without saying that Congress made no law, in fact no one made a law,that students should be allowed to pray at public school football games. Some might even consider voluntary prayer as the "free exercise" of religion, and therefore a right that needs no law recognizing it.
One of the most beautiful examples of modern law and its subsequent interpretations and evolution is sexual harassment. This "law" comes from Title VII of the Civil Rights Act of 1964, which "prohibits employment discrimination based on race, color, religion, sex and national origin."
The word "harassment" was nowhere in that legislation. However, by 1980, the EEOC issued guidelines saying "sexual harassment" is a form of sex discrimination and in 1981 a US court ruled that Title VII liability can exist for sexual insults. Suddenly, being offensive, or merely perceived as offensive, was a federal case.
View these pertinent words from 1998 as quoted in Time magazine.
"In 1964 [when discrimination based on gender first became illegal]," says UCLA harassment-law expert Eugene Volokh. "If you told a member of Congress, 'If you vote to bar discrimination based on sex, you will prohibit employees from putting pictures of their wives in bikinis on their desks,' most legislators would have said, 'Wait a minute, where does it say that?'"
Sometimes politicians get bitten by their own legislation. President Clinton was forced to provide a deposition explaining his sexual history due to "sexual harassment" law, largely championed by the Democratic Party. On the other hand, because of the Violence Against Women Act that he signed in 1994, he could not demand the same of his accuser. He was ultimately fined $90,686 and lost his law license for lying in that deposition, and was impeached by the House of Representatives for perjury and obstruction of justice.
For want of a nail, the war is lost. For a 1964 law against sexual discrimination, a President is impeached in 1998.
Do you think any "fact check" in 1964 would have said that if woman A sues a US President for being sexually offensive, the President would be forced to provide a deposition to explain his subsequent relationship with woman B?
"Wait a minute, where does it say that?" Think about those words as you contemplate the next 1,000-page piece of legislation proposed by Congress.
Randall Hoven can be contacted at email@example.com or via his web site, kulak.worldbreak.com.