Ann Althouse has a post up today (several, actually) discussing an op-ed by Prof. Larry Tribe in the NY Times, discussing the battle in the Supreme Court over ObamaCare and the 'individual mandate' at its core. She focuses on his use of the word "choice" rather than "activity" -- a change in wording she finds monumentally important -- in discussing the potential for the Supreme Court to find ObamaCare unconstitutional. It's interesting that she finds that Tribe's choice of "choice" is "monumentally important" in the constitutional debate even though it is never used in this context in the Constitution. "Choice" and "choose" show up there in, e.g., the 12th and 14th Amendments dealing with the "choosing" of federal officials.

Different notions of "choice" are involved in understanding key words favored by the Constitutional framers -- mostly "free exercise," "the freedom of ..." and like expressions -- that necessarily involve a right to choose among alternatives. Part of that is the usual 'freedom to vs. freedom from' stuff, but it's not just that.

Prof. Althouse's critique of Tribe's choice of "choice" is historical -- the SCOTUS hasn't talked about the Commerce Clause in those terms, but that critique leaves off the word that Tribe would probably respond with: "yet". He overstates the case in suggesting that anything here is settled law. But it's also true that the SCOTUS' prior decisions have never drawn a sharp line between "activity" and "inactivity." Instead, those earlier cases all involved "activity" of some sort (although growing wheat for personal consumption is very close to the line of "economic inactivity", since it does not involve direct participation in market transactions -- quite the opposite in fact). Randy Barnett, another lawprof, came up with legal theory that has now been accepted by two lower federal courts -- Commerce Clause power extends only to commercial activity, not inactivity. The key to that argument, as others (Prof. Richard Epstein, e.g.) have said, is that it doesn't require the courts to adopt a limitation on federal powers that might logically raise a question about the constitutionality of Social Security, for example. The Supreme Court has never decided whether the Commerce Clause (and the Necessary and Proper Clause) draws a sharp line at "inactivity". We're about to find out.

The real thrust of Prof. Althouse's critique is the claim that "Tribe attempted to skew opinion by substituting 'choice' for 'activity'". That seems true enough but it doesn't say much. Tribe clearly knows what he is doing, but the constitutional issue is as much policy/politics as it is an analysis of constitutional text and history. And everyone expects that the SCOTUS decision will be impacted by political factors, even if they are never acknowledged in the decision. Tribe wants to push opinion, and is offering a clever argument to do so. Randy Barnett did the same thing, and Ann Althouse does it every day on various topics. So no big deal after all.

Prof. Althouse ends with a distinction between "choice" understood as "something real and specific that the individual has done," versus "choice" as "an elaborate process of high-level reflection." There's less there than meets the eye, I think. The necessity to choose is an aspect of every moment of life; there is no sharp line between Anne's two examples. Actions have consequences, and we have a choice in how to deal with them too. It makes no difference whether the choosing is instinctive or reflective, high-level or its opposite -- it's still just a choice. Sometimes the choice is to do nothing. That's life.

Another example Althouse doesn't discuss is common in economic literature -- tax expenditures, resulting from a decision not to tax a certain transaction, etc. A decision not to tax is an economic choice often made by legislators because of its economic impact, but whether it qualifies as activity or inactivity is not so clear. One could make the same argument about the decision not to purchase medical insurance. Whether that would be persuasive in the constitutional argument is a different matter. But since a power over commerce is what is at stake, and even in constitutional arguments, the chosen words -- even "choice" and economic "activity" -- are intended to have their ordinary meaning, it might make sense to look at how "choice" is used in the economic and commercial context too. But that's a different discussion.

Freedom has always been treasured as an idea, even as its substantive content has differed from one legal culture to another and its very meaning has been a battleground between left and right. Plato was famously against freedom of speech for poets, and that Platonic strain in Western thought is still there to be found. Anyone who thinks, like Plato, that they have grabbed hold of the key to virtue is unlikely to value freedom of speech -- that was the history of religious attacks on freedom in the medieval period in the West and the current story in much of the lands of Islam today.

Freedom of speech (the Bill of Rights mentions "the freedom of speech," suggesting a concept of known contours and limits) is more of an American thing. It's not much in evidence in Canada or the UK as a fundamental value, certainly not in the same sense as it is here, and even less so in the EU.

The American idea is freedom as an attribute of individuals, both a 'freedom from' and a 'freedom to'. That's always had plenty of enemies and few friends among those in charge even in the US. Lefties, who usually see individuals primarily as members of larger groups, regard the group as the more important focus of attention. Conservatives look at the same thing, and consider groups to be aggregations of autonomous individuals. Life, being a messy thing, doesn't fit easily into either paradigm.

Humility, a recognition of one's own limitations and fallibilty, is the characteristic that is likely to make someone treasure the American idea of freedom of speech. Those who have all the answers are morely likely to think that they should dominate the conversation, even (if necessary) to drown out competing voices. No wonder freedom of speech is not much treasured, except as a slogan, on American campuses today.

Krugman's Latest

What's hard to figure out about Krugman is his view of his audience. A NYT op-ed is, in part, a pulpit for preaching to the faithful, a place from which to encourage them to keep the faith. He does that all the time. I have the impression that the faithful love him for it; everyone else, not so much.

"Preaching" is also how he seems to see his mission -- explaining the lefty gospel, giving advice on what an authentic, righteous life looks like when transposed into public policy, etc. A piece in today's New Republic argues that a lot of the lefty chatter about the Tucson shooting was purely a fact-free, faith-based narrative. That's Krugman's usual stance too. Krugman's column today adds a Manichean twist, dividing the world into the morally enlightened (his team, of course) and the selfishly dimwitted (you know who you are).

It's strikingly strange that, for someone who comes off as a dedicated anti-religious secularist, Krugman's op-ed persona amounts to a caricature of a 19th century Bible-thumper. When I read Krugman's stuff (admittedly, not that often), I keep hearing the voice of Fredric March playing Rev. Brady in Inherit the Wind. And we know how that ended.