In watching the House vote on healthcare this evening, I was struck rather profoundly by the fact that after the predictable cheering, the Democrat delegation broke out into a chant of “yes we can.” Perhaps I should have predicted that too, but it was a disgusting spectacle to watch as our elected politicians worked themselves into such a self-congratulatory frenzy. It is even more disturbing when you considered what they now proclaim they can do.

Most of the drama leading up to this vote comes from the fact that the American people did not want this bill to pass. If the people were on board, tonight’s vote would have been a mere formality; furthermore, it would have happened months ago. But the people stood up against the bill, some on principle, others formore specific reasons, but a clear majority did not want what happened tonight to occur. The people expressed their views in polls, by mail, by phone, by internet, and at the ballot box where a series of candidates did better than they should have had any reason to simply because they ran on conservative principles. Congress knew that the clear will of the people was that the bill must die.

So when they chant at us, “Yes we can,” what they are really chanting is that they can defy the will of the people, openly and in plain sight. They are saying that they can govern against us, not just against our will, but to our own detriment. They are loudly proclaiming that they can defile every principle the nation was built from, enshrined in the constitution, and cherished by everyone who believes in liberty.

I look forward to the coming election, where I expect the American people will have their own chance to be equally jovial in the streets. I look forward to 2012, when Obama will be thrown from office in disgrace. On these says of reckoning, the people will have their chance to take to the streets in and greet Washington with their own rallying cries:

“No, you can’t.” “Freedom reigns.”

It’s time again for the Olympics to kick off into full force.  Already as I write this, the athletes have been hard at work for the past two days competing for gold on the world stage.  Every two years, the games present a wonderful opportunity to forget about politics and focus on a much more wholesome form of competition.

Of course, Vancouver has more to offer than just a collection of top athletes.  Their opening ceremony was also pretty interesting, and I particularly loved the lighting of the torch.  And then there was the fiddler in the canoe who fought against his own shadow.  Or, perhaps I should say, the Batman…

Best of luck to all the athletes competing in Winter Olympics 2010!

Obama has now declared that critcs of his terrorism policies are serving the interests of Al Queda. Isn’t that fear-mongering, Mr. President? Isn’t that silencing dissent? Isn’t that questioning the patriotism of the opposing party? ISN’T THAT EXACTLY WHAT YOU SPENT EIGHT YEARS ACCUSING BUSH OF?

What are the important things to take away from tonight?

1) A well-sold conservative message can work, even in Ted Kennedy’s home town. While it may be that Scott Brown isn’t the most solid conservative out there, his message and campaign were pure Reagan.

2) Standing up for yourself works. Brown refused to allow his opponents to define him or frame the issues. He publicly called them on their antics. Shades of Reagan’s “there they go again.”

3) If Massachusetts isn’t safe, NOWHERE is safe. And, tomorrow, every citizen needs to call their senators and congressmen to make sure they know that. If Obamacare can topple Massachusetts, then Virginia can’t be far behind… Sen. Warner… Sen. Webb?

4) Obamacare is Pyrrhic… and it hasn’t even passed yet. Wait until the taxes start in. If, as many are expecting, the House rolls over and passes the Senate version of the bill, several election cycles will pass between when we start paying more and when people can pull up to the public teat.

5) It helps to do a nude spread in Cosmo. At the very least, that should keep Newt off the radar.

Looking around the Internet today, I happened across a three part discussion of sorts between some folks over at the National Review Online.  The essence of the discussion begins as Jeff Rowes and Clark Neily attempt to convince us that it would not be an act of judicial activism for a court to strike down a law banning compensation to organ donors, to the extent that the law bans compensation for bone marrow donation.  Their argument is made in the first post, which is filled with policy reasons why compensation for bone marrow donation should be legal.  The entire discussion, such as it is, is hardly noteworthy, except that it makes clear the hazard that comes from an all too common misunderstanding about the nature and purpose of the Constitution.

Jeff and Clark complain that “[Ramesh Ponnuru's] view, shared by an unfortunate number of conservatives, is that the Constitution created a legislature with the unbridled authority to deprive citizens of liberty arbitrarily, at least in the absence of a (sufficiently) enumerated right.”  They reply by stating:

[It is] just wrong as a matter of text, history, and original understanding of the Constitution. Government officials in America have never had the power to act arbitrarily, and among the most important roles assigned to — though not always discharged by — our judiciary is ensuring that the other branches act within the constitutional bounds assigned to them. Irrationally denying citizens their right to participate in safe, effective, lifesaving medical care is not a legitimate exercise of power. It is not only appropriate but vitally important for courts to fulfill their constitutionally assigned role as a check on the arbitrary exercise of government power,

What is wrong is that Jeff and Clark, like so many others from every political walk of life, and including judges, even those who sit on the Supreme Court, treat the Constitution as some sort of limiting document which restricts the otherwise unbounded power of the federal government.  It is that view which is “just wrong as a matter of text, history, and original understanding of the Constitution.”  Far from being a limiting document, the Constitution is best read as an enabling document.  It is best read according to the following procedure:

1. The government has no power.
2. Except these powers, which the Constitution explicitly grants to the government.
3. Except these powers, which are nowhere in the explicit grants anyway, but which are so important to keep away from the government that we’re going to call them out by name in the Bill of Rights.

The historic defense against arbitrary laws is the fact that the federal government, until around the New Deal era, was understood to not have a great deal of authority with which to enact them.  Indeed, it is hard to imagine which provision of the Constitution would act to enable the federal government to regulate abortion donations at all, at least as long as the organs never crossed state lines to trigger the Interstate Commerce Clause.  Yet, we readily accept that the federal government has this power, absent some specific Constitutional instruction to the contrary.  Jeff and Clark chose the Due Process Clause (presumably the “substantive” flavor), and now get to hope for the best with their argument that the law is arbitrary.

The mere formulation of the essential argument made by Jeff and Clark points out the trouble with interpreting the Constitution backwards.  They are essentially asking a judge to decide whether or not there is a “rational medical reason to imprison people for five years for compensating marrow donors, but not imprison people for compensating blood or sperm donors.” (emphasis added)  A judge, who probably has no training in medicine, is being asked to decide whether or not a law is medically rational?  And yet, that is the required burden to prove that the law is arbitrary.

Under an originalist reading of the Constitution, we would have little need to wonder whether this law is arbitrary.  It would never withstand scrutiny, because it would fall entirely outside the realm of federal power.

Unfortunately, nobody asks anymore where in the Constitution the federal government has the power to do most of the things that it does.  The neglect makes sense; our courts have taught us for nearly a century that between the Commerce Clause, the Due Process Clause, the Necessary and Proper Clause, the General Welfare clause, and emanations from penumbras of all of the above and more, nothing is beyond the federal power except those few things mentioned in the Bill of Rights.  But, if the Constitution is to have any meaning at all, we must ask for the source of federal authority — rooted in the text of the document itself, not what the courts have said about it — in every matter that Congress takes up.

Jeff and Clark deserve deserve to win.  I just wish were practical for them to use a different argument.

In an interesting article on NRO, Stephen Spruiell talks a bit about a radio program that aired recently on NPR.  The NRO article makes excellent reading and provides a great deal of room for thought.  What most caught my attention in the article was the story of Dr. Dan Merenstein.  His story succinctly captures what I believe is a coming problem in health care which America will need to deal with whether or not Obamacare becomes a reality.  The problem is what to do with evidence based medicine.

To set the stage for the coming discussion, here is the quote from the NRO article describing Dr. Merenstein’s story:

The NPR team produced several stories on how defensive medicine drives up costs, including one about a doctor named Dan Merenstein. As a third-year resident, Merenstein counseled a 53-year-old man on the benefits and risks of getting a PSA screening (a common test for prostate cancer). Merenstein told his patient that he thought the risks outweighed the benefits: False positives are common, follow-ups invasive and potentially harmful. The man declined the test.

The man was later diagnosed with a fatal prostate cancer, a kind that early detection probably would not have helped. He nevertheless sued Merenstein and his residency program. The plaintiff’s lawyers argued that Merenstein shouldn’t have given the man a choice on whether to have the test. “The jury . . . rejected the idea of following the guidelines based on evidence,” Merenstein said. “They took this approach that this thing called evidence-based medicine is just a way to save money, just a way to ration care.”

The verdict left Merenstein alone, but found his residency program liable for $1 million. He told NPR that it’s hard not to see patients as potential plaintiffs. He says he still counsels patients on the potential drawbacks of the expensive, not-always-necessary screening, but he admits that he gives patients a little push by telling them that most people do get the test.

For those new to the term, evidence based medicine (EBM) is a technique for deciding what tests or treatments to offer a patient.  EBM uses the scientific method to identify which procedures are more likely than others to ensure that a patient arrives at a good outcome.  The science of EBM looks to research studies, peer reviewed publications, and experimentation to reach its conclusions, and then publishes those conclusions as guidelines for doctors to use in everyday practice.  The goal of EBM is to increase quality of care and lower costs by identifying treatments that work well, work quickly, have the fewest side effects, and minimize a patient’s risk.  What EBM provides is a recipe for doctors to follow when caring for their patients that has been shown to be scientifically sound.  What EBM does not provide is a guarantee that the recipe is always the right one in every case.

For a society gripped with litigious instincts, EBM represents one of modern medicine’s greatest double edged swords.  On the one hand, the entire point of EBM is to improve the quality of patient care by providing doctors with treatments that are both effective and affordable.  On the other hand, EBM invites a variety of legal questions which we as a society are going to need to deal with.  Should doctors be held liable for bad patient outcomes when they do not follow EBM prescribed treatments?  Should following EBM treatments create a presumption, rebuttable or not, that a doctor acted appropriately and should be held immune from suit?  Should insurance companies pay for non-EBM procedures?  What happens if the answer to both of the latter two questions is “no”?  There are many more questions, but that covers the flavor of what sorts of things that we as Americans should begin asking ourselves.

In my view, doctors should be guided by EBM, but not constrained by it.  Legally, it would be fair to create a rebuttable presumption that EBM treatments are appropriate, but leave doctors responsible for determining whether or not the EBM treatment applies.  Doctors should certainly be permitted, if not encouraged, to depart from EBM in situations where their professional judgment suggests that a different course of action is more appropriate.  Doctors should, however, be required to know exactly what they are doing and why; avoiding an EBM treatment simply because the doctor does not care for it would not be a valid line of reasoning.

As patients, we owe it to ourselves to ensure that we receive the best possible care.  It is ultimately up to each of us to make sure that doctors have made the best decisions in our particular case.  We should feel comfortable asking doctors if their treatment is evidence based, and doctors should feel comfortable explaining why not if the answer is no.

Life is good for the federal government when they can make up whatever numbers they want to track the success of their stimulus money.  In an article which is making its way arond the news, it appears that the stimulus has created or saved around 650,000 jobs.  Though that sounds impressive, I am forced to wonder exactly what we have gotten for our money.

The new data released late Friday represents 156,614 federal contracts, grants and loans awarded to more than 62,000 state and local governments, companies, school districts, universities, non-profits worth a total of $215 billion.

So, that means 650,000 jobs were created on the basis of $215 billion in government spending.  Using simple division, that means each job cost the US government — and us, the taxpayers who are footing the bill –$330,769.23 per job.

Now, while $330k may sound like a pretty small sum of money to Wall Street tycoons, members of Congress, and the lovely Mr. Madoff, that is a rather large sum of money for the average American.  Recalling that the stimulus money was (supposedly) aimed at construction oriented infrastructure projects make the money per job seem even more excessive.  Even at union wages, I’ve never heard of a construction worker who makes that kind of money.

So where on earth is it all going?

I recently got into a brief exchange with someone I believe to be another conservative over in the comment section of one of the blogs I follow.  The subject came up on gay marriage and one of the things the comment author posted struck me as being very wrong, but likely representative of a very common belief.  I rather liked the exchange, and I’ve reproduced the interesting bit below.

to deny a group of people the right to love one another

You know, this is a rather stunning non sequitur, if you really stop and think about it.

While love and marriage may go together like a horse and carriage, nobody in their right mind would say that a horse is a carriage or that a carriage is a horse. So too with marriage and love.

How many married couples can you think of who stayed together after the flame had worn out, either because divorce wasn’t worth the trouble, or because they had kids, or for any of a number of other reasons? How many people have you loved but not married? How many people do you love but have not married? And does the lack of a marriage somehow make that love less sincere?

I haven’t seen anyone — anyone — say that gays can’t love each other, or that it should be illegal for them to do so. Marriage is but a single facet of the overall picture. To be sure, it carries certain symbolic and legal implications which may or may not be borne out by domestic partnership.

There are many good arguments to be made in favor of gay marriage. There are even good conservative arguments for it. However, fallaciously equating love to marriage is not among them, and you could probably do better by finding an argument with a bit more logical consistency behind it.

Now, it occurred to me sometime after posting this that I was actually wrong to say that I haven’t seen anyone say that gays can’t love each other.  In fact, I have.  Once.  The result of which has done more emotional violence to the family than any harm I could imaginine arising from homosexual relationships as such.

To be sure, the destruction of families runs directly contrary to any conservative value I recognize.  That someone would allow a matter of homosexuality to destroy a family strikes me as being entirely incompatible with conservatism as a whole.  That, I think most would agree, is a travesty regardless of one’s political persuasions.

As I have followed some of the lingering fallout from CPAC 2009, I have found myself spending a bit of time considering some of the stuff Rush said about putting principles before policy.  It should come as no surprise to anyone that I agree with that approach, as I began my own posting on this blog with an articulation of First Principles which I view as being important to the future of American conservatism.  Rush tells us that there is no need for anyone to redefine conservatism and complains that anyone who tries to redefine it is at best missing the mark, and at worst a destructive force.  While I’ll take no position on that debate, I am sure that there is a significant and growing population for which conservatism needs to be defined in the first place, and that some of those in the “redefinition” business are actually trying to figure out just what the actual definition is.

The essential hallmark of a true blooded conservative appears to be a deep belief in God and Ronald Reagan.  Conservative principles are Reagan’s principles, and those who would seek to deviate are frowned upon or ostracized.  For members of the current political class, for people like Rush, and for Baby Boomers in general, the invocation of Reagan’s name codes for a whole collection of principles and policies which set most or all of the entire definition of modern conservatism.  For these people, who lived through Reagan, the full set of principles is entirely clear, and perfectly summarized in speaking His name.

America has reached a point in time where people who have never known Reagan are beginning to become politically active.  Though they are only just now becoming politically active, the up and coming leaders and opponents of Reagan’s Party are people who were just starting elementary school when Reagan himself left office.  Their knowledge of Reagan comes not from bearing witness, but from teachers and textbooks.  To them, and to the liberals who have no incentive to correct any misunderstanding, he is the man of Iran-Contra, compassionate conservatism, and that silly trickle-down “Reaganomics” thing.  Oh, and the end of the Cold War.

These relatively useless bits of information are not helpful to an up and coming conservative when it comes to understanding conservative principles, particularly if that understanding is meant to make conservatism sound like a good thing.  To make matters worse, young conservatives and pretty much all liberals now define conservatism not in relation to Ronald Reagan, but to George W. Bush.  What Reagan actually stands for has been communicated very poorly from the elder to the coming generation, leaving younger conservatives to pretty much try to make it up as they go along.

Perhaps one upshot of the current squabbling will be an effort not so much to redefine conservatism, but for the people who already know the definition to spend some time filling the rest of us in.