Perhaps as early as today, the conservative-dominated Roberts Court will choose a metaphor that will affect millions of people and perhaps change the history of our country very much for the worse.
Back in 1978, linguists Michael Reddy and me (George Lakoff), working independently, demonstrated that metaphor is fundamentally a matter of thought, and that metaphorical language is secondary. Conceptual metaphors shape our understanding and can determine how we reason. Consequently, metaphor is central to law, as Citizens United showed by expanding the common legal metaphor Corporations Are Persons, with vast political consequences.
This week's likely judgment was prefigured in the 2008 Republican presidential race when Rudolph Giuliani likened health care to a flat screen TV. If you want a flat screen TV, buy one; and if you don't have the money, go earn it. If you can't, too bad, you don't deserve it. The same with health care, he argued, imposing the metaphor that Health Care Is A Product.
This was a sign that conservative strategists were looking for a way to impose this metaphor.
Barack Obama helped them. He bought into that metaphor when he chose the Interstate Commerce clause as the constitutional basis of his health care act. He had an alternative -- Medicare for All -- since Congress has the duty to provide for the general welfare.
But Obama accepted the Health Care as Product metaphor because he wanted to regulate the insurance industry, and Congress has the power to regulate interstate commerce. In doing so he fell into a conservative trap. The Interstate Commerce clause rests on the metaphor that Health Care Is A Product. That led to Supreme Court justices arguing that the individual mandate is forcing people to buy a product, and that, they hinted, is unconstitutional -- at least 5-4 unconstitutional. The argument is that if the government can force you to buy one product, it can force you to buy any product -- even broccoli.
There is another metaphor trying to get onstage -- that the individual mandate levies a health care tax on all citizens, with exemptions for those with health care. The mandate wasn't called a tax, but because money is fungible, it is economically equivalent to a tax, and so it could be metaphorically considered a tax.
Where the first metaphor would effectively kill the Affordable Care Act, the second could save it. Since Congress has the power to levy taxes, the second metaphor would clearly be constitutional.
But adopting such a metaphor would open the door to other disasters, since then all fees or fines can be argued to be taxes. Conservatives are already making such arguments.
The Supreme Court is a remarkable institution. By a 5-4 vote, it can decide what metaphors we will live -- or die -- by. It is time we recognize, and speak regularly of, the Metaphor Power of the Court, the power to make metaphors legally binding. It is an awesome power. This is something the press should be reporting on, legal theorists should be writing about, and all of us should be discussing. Should the Court have such a power? And if so, should there be any limits on it?
Authors of THE LITTLE BLUE BOOK: The Essential Guide to Thinking and Talking Democratic
This post has been updated from a previously published version.
Cenk Uygur: The Mandate Is the Perfect Symbol of the Central Mistake of Obama Administration
First, both sides argued that the mandate wasn’t a tax. Although this isn’t binding, it would be unusual for the Court to rule in a way neither side argued.
Second, Congress specifically called it a penalty not a tax. Again this isn’t binding, but its highly probative considering the chief legal feature of a tax is to raise money, where this is only an ancillary feature of the mandate.
Finally, although Congress has broad taxing and spending powers, the tax must be constitutional. There are only three types of taxes permitted by the constitution: indirect (excise), direct or income taxes. If this were considered a tax it almost certainly would be considered a direct tax. Excise taxes are triggered upon some activity (here the “tax” is triggered on inactivity) and income taxes are taxes based on one’s income (here the mandate is incurred-with subsidies-regardless of whether one is working). However, per the constitution, direct taxes must be apportioned among the population (i.e. it would have to be a de facto flat tax which the penalty isn’t-it varies as to income and state). Congress could rewrite the law to make it constitutional by imposing a flat tax on everyone-say $5000-and then rebating it dollar for dollar for everyone who has bought insurance. But that’s not this law.
- corporations on juries - isn't it discriminatory for people on the voting list to serve on jury duty when all persons are not included on the list of potential jurors? corporations should also be eligible. People loose income while on jury duty and suffer as a consequence of the discrimination.
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- Jail and Capital punishment for corporations. If people can be convicted for killing people and either executed or held in detention and out of contact from members of society, then isn't it discriminatory to allow corporations to simply pay fines for causing the death of a person? What of prohibiting corporations from contacting members of society or even capital punishment - bankruptcy?
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P.S. Don't forget to build your own bunker or safe room, arm yourselves, and set aside provisions. God bless the child that's got his/her own... Let's hear it for life in the land of the bought and sold and the home of the afraid, errr, brave!
Only because you both are both adept with language(and metaphor), and because HP readers are usually quite clever, I cannot resist posing this question at large: How can we change the term "disabled" on a national level? I find it offensive and inadequate. Who wants to be called "dis"-anything?
There are many & varied ways the chronically ill and/or physically challenged take shape. In order to adapt to and cope with our immediate and social environments, we must be innovative and sometimes downright ingenious. Perhaps we are "variantly-abled," or even "innovatively-abled." (Don't spell check that, I made both words up and spell check, often lacking imagination, rejected them.) Terms change, and rightfully so, as our society changes. There must be some way to create a dialogue on this term & bring awareness to whoever it is that is in charge of such things!
How come all the moralists are all against health care for living people but scream bloody murder when a woman opts out of pregnancy!!!!
They want unwanted babies to be born so that they can deny them the basic necessities of life!!!!
The primary reason for the unreasonable cost of medical care in the US is that we have gradually allowed government control of the market for this service without accepting the lower quality and standards that would normally come with this control. We have a distorted market where private insurance is already subsidizing public insurance and neither patients or providers are held accountable.
Costs rise because of malpractice insurance & lawsuits, and because hospitals have to write off costs for services rendered to the uninsured or those who cannot pay, which in turn causes costs to rise. No one thinks the government is his parent. What progressives push for is the ability to buy health coverage at a reasonable, affordable rate, and to be able to use said health coverage when one actually needs it. I guess that's just asking too much, though, isn't it?
To put it another way, health care is like a flat-screen TV. Except in the case of health care, the flat screen TV is only a few hundred dollars when you don't need it or care to have it. When you do need it, it suddenly costs $100,000, and some retail shops who find out that you are looking for it suddenly and mysteriously refuse to sell one to you. And it's like a flat screen TV if at certain points in your life you need a flat screen TV or else you will die.
It's a distinction without a difference, but that's where we lawyers dwell.
This is about as short-sighted as it gets. People who can't afford it, don't buy it. They go without preventative care, which means that when they do get sick, it's most likely going to be a lot worse and a lot more expensive. They also go to the emergency room for treatment, where they will be treated, and because they can't pay, the hospital must write it off, which results in increased costs for everyone else, which results in higher insurance premiums, which in turn makes more people unable to afford the flat screen TV. Thus, the longer the machine churns, the fewer and fewer people can afford to get the "product." What we should be doing in our society is working to ensure that more and more people can afford the product, since that makes for a better, healthier society, and it lowers costs for all of us.
This is why the current system makes no fiscal sense over the long term, and why the status quo cannot be allowed to continue in perpetuity.