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FREEDOM FROM GIRL-COOTIES! LADYPARTS!! FREEDOM!!!: (Not) The Honest Broker: Live from The Roasterie CLXXIV: May 14, 2014

This was supposed to be part of The Honest Broker about conservative objections that ObamaCare was an unwarranted and unnecessary infringement on negative liberty--on individual "freedom". But it was unsuccessful. It ran into two things along the way. First, it ran into my complete failure while teaching Economics 2 to successfully draw a line between "negative" and "positive" liberty that would allow one to say that the competitive market equilibrium was in some sense a perfection of negative liberty and that further restrictions on it were not: I wound up convincing myself that it was the jungle equilibrium that was the perfection of negative liberty, and from that point forward it was utilitarian promotion of positive at the expense of negative liberty all the way down...

Second, it ran into a piece from Richard Epstein that I had had hanging around since last November. When I first saw the Epstein piece, I filed it away because I thought it was (a) completely batshit insane, but (b) worth reflection upon, because (c) there are a lot of people who think that Richard Epstein is not completely batshit insane--or, if he is, it is in interesting ways--and (d) I did not think last fall that I had a handle on what was really going on in Richard Epstein thought.

Now I do...

Let's start with Phillip Klein:

Phillip Klein: Study Finds Romneycare Saved Lives: "It’s important to note, however, that this doesn’t answer...

...the broader philosophical questions concerning whether the federal government has a role in guaranteeing access to health coverage or whether the goal of expanding insurance justifies infringing on personal liberty...

And my first thought is: What?! RomneyCare saved lives--it gave people who didn't previously have access to health care access, and in some cases this was enough to tip the balance. Preserving one's life enhances one's "negative liberty". Indeed, that's what negative utility is: life, liberty, and the freedom from restraint necessary to pursue happiness.

And let me continue with Bill Gardner, who glosses Philip Klein's objections that Obamacare is an infringement on "negative liberty". He starts by quoting Klein:

Bill Gardner: Does the ACA decrease human freedom, or increase it?: "Philip Klein... notes that many conservatives have shifted their views...

...toward accepting that being insured is good for your health.... Klein points out that we also need to consider the effects of the ACA on human freedom:

It’s important to note, however, that [the Sommers study] doesn’t answer the broader philosophical questions concerning whether the federal government has a role in guaranteeing access to health coverage or whether the goal of expanding insurance justifies infringing on personal liberty...

Gardner then refuses to let Klein grab the high ground of liberty for himself by resorting to Isaiah Berlin's two concepts of liberty: "negative liberty" and "positive liberty". Never mind that Berlin in the end came down on the side of "negative liberty" by pushing "positive liberty" to a reductio in which it vanishes completely as power to do things not on the part of individuals but on the part of the director of a machine in which the individual is a cog with an assigned place. We know that argumentative move, and we follow Amartya Sen and reject it. Gardner writes:

Klein’s right: concerns about freedom motivate much of the opposition to...

And then Gardner pulls the switcheroo:

...and support of the Affordable Care Act....

Followed by the explanation:

‘Freedom’ is a complex term.... Sometimes there is a tradeoff.... Child labor laws restrict the negative freedom of both employers and children themselves. Child labor, however, endangers children’s health and may prevent them from getting an education. Child labor laws allowed children to develop their full capabilities and therefore represented an expansion of positive freedom that more than compensated for the infringements on negative freedom. Klein is... primarily concerned about how the ACA reduces negative liberty, for example by coercing you to buy insurance or by taxing you to subsidize someone else’s insurance... The ACA might also expand positive freedom. Many people who were excluded from the insurance market because of pre-existing conditions, or who could not afford it, will now have an option to purchase it. For those who have obtained their insurance through their employer, the ACA may give them greater freedom to change jobs or retire. Finally, getting insurance may provide people with access to healthcare that restores their capabilities and prolongs their lives, thereby expanding their positive freedom. Of course, how much the ACA infringes negative freedom and whether the ACA actually delivers positive freedoms will and should be contested. My point is simply that in assessing how the ACA affects freedom, we need to consider both negative and positive freedom...

Piling on:

Suppose you were illiterate but gained the power to read, or were disabled but had your mobility restored by surgery. These new capabilities would vastly expand what you could do and the experiences that you could have. People who have been through these experiences describe themselves as becoming free. Positive freedom is... the space of possible human functioning afforded by our capabilities...

As I went over this ground this spring while teaching Economics 2, I quickly convinced myself that there wa no place where I could stop if I allowed the argumentative move "government action X is bad because it infringes on negative liberty" too have force. It turned out to prove much too much. I ultimately arrived where John Holbo had started the semester:

John Holbo: Occam’s Phaser?: "I’m rereading Nozick’s Anarchy, State and Utopia because I got to thinking...

...what’s wrong with good old fashioned ‘force and fraud’ anyway? Isn’t the Night Watchman state just creeping Soft Tyranny, in Tocqueville’s sense? Plus it’s obviously a moral hazard and generally destructive to private virtue.... Nozik spends a great deal... 150 pages [on ']Why have even a minimal state that secures everyone against force and fraud?['] I know now that his answer is... really quite complicated and ultimately not altogether clear, despite the fact that Nozick is generally a clear writer. I’m not convinced Nozick really has any right, by his lights, to a full-fledged Night Watchman state...

And, indeed, I concluded that if you start with the primacy of "negative liberty", you do not have any right to a full-fledged "Night Watchman" state to protect your property, even if your property did (which it does not) have a clear chain of transfer back to the beginning.

Contract law infringes on my negative liberty by making it painful, expensive, and troublesome should I decide to break my contracts. Contract law does so in the interest of promoting the positive liberty of my counterparty, who wishes to be able to act in reliance that I will perform my contractual obligations and thus to advance his positive liberty interests. Similarly, tort law infringes on my negative liberty by making it painful, expensive, and troublesome should I decide to do something that makes your stuff less suitable for the purpose you want to use it for. What is this but another social decision that my negative liberty is to be sacrificed to promote your positive liberty--your positive liberty to be able to plan to and then use your stuff to do things because I will not have taken it away? And let us not get started on fair weights and measures, or truth in advertising, or antitrust: all infringements on my negative liberty in order to promote your positive liberty. And yet somehow all these sacrifices of negative liberty arrive at a spot--the competitive market in equilibrium--that is supposed to be the apogee of negative liberty. Just what is going on here?

It seems to me that there are two moves here:

The first is a Lockeian move: to make competitive market exchange prior to any form of government or state: that rule by local notables who own property in the interest of local notables who own property is the natural order of things, into which government and politics intrude. This is--barely--excusable in the case of a seventeenth- or eighteenth-century. But in the long sweep of history such does not produce a competitive market but rather a jungle equilibrium: the Anarchy of Stephen is what we are talking about here. However, the Lockeian move makes it easier to accept the second move.

The second move is that the competitive market equilibrium with the Night Watchman state is in fact the utilitarian maximum, and that the fact that it is also the utilitarian maximum tells us that the "negative liberty" rights-based position is the correct one. It is the orthodox marketeer position: we enthusiastically accept and endorse sacrifices of my negative liberty to promote your positive liberty as long as such sacrifices maximize the number and value of win-win exchanges made in a competitive marketplace one equilibrium. We want to see the greatest consumer plus producer surplus generated. And if we are broad-minded, we might even want to adjust that for declining marginal utility of wealth and measure consumer and producer surplus not in monetary but in utility terms.

But note how far we have moved away from justification based on "negative liberty". In the marketeer setup, are not talking about fairness or rights. We exalt the competitive marketplace in equilibrium because it maximizes win-win exchanges and their value. But it is not "fair". The producer surplus flows overwhelmingly with those with a low opportunity cost of production; the consumer surplus flows overwhelmingly to those with a high willingness to pay, either because of a high wealth or because of a favorable psychological predisposition. There is no justification to the institutional set up underpinning the market--other then its outcome: wealth or welfare maximization.

So how does this apply health insurance, freedom, and community rating and guaranteed issue?

The point is that the justification of community rating and guaranteed issue in health-care finance is the same as the justification of tort, contract, and property in the Lockeian competitive market in equilibrium. The benefits from community rating and guaranteed issue are that it moves us from a marketplace in which transactions are few and a lot of surplus is left on the table to a competitive marketplace in which transactions are frequent and a lot of surplus is generated. That's the justification of the legal underpinnings of property and contract and tort: they allow you to possess and exchange, and so reap surplus, even if you are feared to be a counterparty who lacks a taste for fulfilling contracts for their own sake.

So (and we are, I promise, approaching the end here) if the argument that community rating and guaranteed issue art decisively harmful infringements on negative liberty, they must infringe on negative liberty in a very special way--a way much more injurious than the mere infringements on negative liberty in the interest of promoting positive liberty created by minimum-wage or contract laws.

What are these infringements on negative liberty that are so special?

Phillip Klein does not tell us.

But Richard Epstein does:

Richard Epstein (November 2013): Obamacare’s Death Spiral: "We need to kill Obamacare...

...and avoid a single-payer system at all costs.... The President’s adamant position in the face of an industry-wide insurance meltdown ought to force a serious reconsideration of the constitutional issues.... The extraordinary claims for government domination over individual rights comes front and center when the President announces that he will protect the fundamental right to healthcare by barring ordinary folks from acquiring coverage in the voluntary market, in order to force them to seek coverage they don’t want--like treating maternity care for men as an essential minimum benefit.... The Obamacare fiasco now flunks Justice Holmes’ extreme rational basis test... [that:]

a rational and fair man necessarily would admit that the statute proposed would [not] infringe fundamental principles as they have been understood by the traditions of our people and our law...

In the light of day, Obamacare is that bad, even if the minimum wage law is not...

That is the decisive infringement on negative liberty: lumping the medical expenses of XX people together in with those of XY people, and requiring XY people to pay an equal share of them--"treating maternity care for men as an essential minimum benefit" is what makes ObamaCare a decisive infringement on individual negative liberty in a sense in which property or contract or tort or minimum-wage or antitrust laws are not.

And that is what I thought was batshit insane. And that is why Phillip Klein needs to rethink his idea of just what the "negative liberty" interest he has that is harmed by ObamaCare is.

From the perspective of treating the sexes as interest groups, of course, treating maternity care as something of concern to XX people only is ludicrous. The reproductive system is perhaps the ultimate joint product: Both sexes derive enormous, equal, and infinite utility from the effective functioning of the human reproduction system. It is what enables the perpetuation of the species. None of us would be here without it. Testicles are of limited use without ovaries, after all.

ObamaCare lumps XY people into the same pooling equilibrium as XX people. To call this an enormous infringement on the liberty of XY people--an infringement much greater than the infringement on negative liberty created by tort or contract or antitrust or antifraud or fiduciary duty or minimum-wage laws--because it deprives XY people of their negative liberty to shirk paying an equal share of the medical cost of maintaining the joint human-species reproductive system...

A biologist would say: Look: the dynamics of human evolution have already worked out in such a way as to impose the lioness's share of the biological cost of reproduction, in terms of energy required, time in which mobility is limited, and physical discomfort on XX people. Are you, Richard Epstein, really telling me now that depriving you and your fellow XY people of your negative-liberty option to shirk paying an equal share of the financial resource burden as well is an overwhelming and decisive infringement on your XY people's negative liberty? That dog won't hunt. That bird won't fly. That fish won't swim. You are putting me on.

From a medical care standpoint, XY people are genetically lucky: urology is cheaper than gynecology, most of the time. But is this any different from failing to give white people a discount for lower levels of hypertension? Failing to give whit people a discount for lower degrees of susceptibility to sickle cell anemia? Failing to charge white people a premium for greater melanoma risk? Failing to charge Asian-descended people more because of colon risk? Failing to charge Ashkenazi Jews more because of Tay-Sachs?

What is it about gynecology?

And it is all about gynecology--that is where all the energy in the ObamaCare-harms-my-freedom movement comes from.

I look. I think. And I conclude that we all do know what is going on in the depths of Richard Epstein's brain. We all do know why he thinks that it is an extraordinary infringement on his negative liberty--a dealbreaker--a grave violation of his constitutional rights--a hill he will die on--to require him and other XY people to pay for insurance to cover maternity benefits.

His liberty is infringed because to do so is to call him a girl.

Have we really reached a stage in which an enormous amount of our politics surrounding healthcare reform--and our politics in general--is governed by male early-adolescent gender-definition anxiety, and attempts to tap into and mobilize that to win elections?

Well, yes, we are.

It is disappointing that we are here: it is undignified.

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