Archive for the ‘The Duty of the State’ Category

Jan 19

Justice Douglass’ 1973 Opinion concurring in Roe vs Wade. An Amicus against Tyranny and the ACA Health Care Mandate

Title: Freedom and The National Healthcare Debate.  By James K. Hahn 2/13/2013 and prior.

While I can demonstrate that Roe was rooted in an unprovable negative presumption regarding the presence of life in the fetus and therefore flawed, never the less the comments he (Justice Douglass) made in his concurring statement support the liberties and authorities of the individual over the mandates of the State regarding health care. I am bringing this to the attention of anyone that feels a compelling interest in the truth.  The people, and that means all of us, you included, must stand up and make our voices heard or we deserve the consequences of our silence. Silence is, after all, consent. Sorry if I seem so strident. But we the people must retrieve the powers we have bestowed upon the Government by our own “consent” or suffer the consequences. The temptation is to think “TOO LATE”. And you may be right. But we must try. History is not on our side. No democratic republic has ever existed much beyond 200 years. They all permitted the same things we have allowed to happen and fell to a dictator as a consequence.  This is the price of abandoning our responsibilities and personal authority as citizens.

Perhaps the best arguments against the validity of the so-called Affordable Health Care Act can be found in the language of a prior Supreme Court ruling in 1973 by Justice Douglass, concurring in that decision.  That decision, with some irony, was Roe vs Wade.

Roe was founded on the false absurd and unprovable negative presumption that life was not present in the unborn individual until it was somehow spontaneously “acquired” at “about” the “24th to 28th” week of whatever was happening in the womb during that period of non-living activity.  The fact that nothing happens in the absence of process and no alternative to the possibility of the life process being the responsible culprit seemed beyond the capacity of the Court to explain.

Howsoever, the review of the decision by Douglass clearly identified the rights and privileges upheld and defended by several of the Amendments of the Bill of Rights contained in the Constitution and were meant to restrain governing bodies from infringing on these rights either in toto or only by very narrowly drawn regulations confined to the legitimate interests of the State and specific to those interests.  The rights of the individual to have presiding control and privacy over those decisions belonged to the individual and his or her appointed health care providers and not to any other person or group of persons not expressly authorized by the knowing consent and authority of the attended client or patient.

The following statements from Justice Douglass pertain:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of “the Blessings of Liberty” mentioned in the preamble to the Constitution. Many of them, in my view, come [410 U.S. 211] within the meaning of the term “liberty” as used in the Fourteenth Amendment. First is the autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.
These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions.
The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one’s own beliefs, Watkins v. United States, 354 U.S. 178, 196-199, is protected by the First and the Fifth.
All of these aspects of the right of privacy are rights “retained by the people” in the meaning of the Ninth Amendment.
Second is freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of “unreasonable searches and seizures” and of “probable cause.” These rights are “fundamental,” and we have held that, in order to support legislative action, the statute must be narrowly and precisely drawn, and that a “compelling state interest” must be shown in support of the limitation.
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person
This right of privacy was called by Mr. Justice Brandeis the right “to be let alone.” Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, “‘outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.'” Kent v. Dulles, 357 U.S. 116, 126.
Third is the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
These rights, though fundamental, are likewise subject to regulation on a showing of “compelling state interest.” We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering “are historically part of the amenities of life as we have known them.” As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:
“There is, of course, a sphere within which the individual may assert the supremacy of his own will [410 U.S. 214] and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.”
In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said, “The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow.”
the Court, in speaking of the Fourth Amendment stated, “This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.”
Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion.”
In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:
“Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.
It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy — the right to care for one’s health and person and to seek out a physician of one’s own choice protected by the Fourteenth Amendment — becomes only a matter of theory, not a reality, when a “multiple physician approval” system is mandated by the State.
Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good faith decision of the patient’s chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
The right to seek advice on one’s health and the right to place reliance on the physician of one’s choice are [410 U.S. 220] basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the “liberty” and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their “liberty,” viz., their right of privacy, without any compelling, discernible state interest.

I also agree that the superstructure of medical supervision which Georgia has erected violates the patient’s right of privacy inherent in her choice of her own physician.

Jan 21

The Duty of the State of a Free People. Universal Healthcare and Life

The Duty of the State of a Free People. 

Universal Health Care and Life.

In “Freedom Defined” we put forth as a duty of the State of a free people is to enhance and facilitate the ability of the individual to exercise responsible authority over him or herself.   One area of action that lends itself to this duty is the issue of health care.  While the State should never be a direct provider or insurer of health services or procedures it can and should be an appropriate regulator and facilitator of access to such services and the economic empowerment thereof.  How can this be done without direct involvement in some socialist mechanism and the usurpation of individual authority and responsibility from the citizen at large?

The answer has been with us almost from the beginning.  Capitalism’s equivalent of socialism is an insurance company.  Private insurance is superior to socialism due to the more efficient management of specific risks.  The problem has been the ever increasing cost of medical services and the insurance premiums that drive a very significant minority of the population away from participation in this relationship,  instead relying only on mandates placed on services by the State resulting in a limited range of access to the health care system usually in the least cost effective ways.  Capitalist mechanisms work only when the devices of fraud are effectively deterred and when individuals are incentivized to manage their access to the products of capitalism in their own economic best interests.  The success of any enterprise is a function of efficient and effective management.  Efficient and effective management is a function of incentive.  Incentive is a function of self interest.  These principles must predominate in every market for economic success and harmony to prevail.

One problem that must be overcome in the insurance industry I call “the squeeze”.  It is the practice by health insurance companies of pushing a succession of “books” of insurance.  It works this way.  Company XYZ opens a book of health insurance policies dictated by its actuarial statistics and marketing appeal.  It markets and sells this product throughout a given region permitted by local laws.  Clients who qualify by virtue of acceptable health conditions allowed by the company are encouraged to purchase such policies to protect themselves against potential health hazards such as illnesses and accidents requiring expensive health care services.  Those with pre-existing and potentially chronic health problems are excluded from these policies and must rely on special and expensive policies subsidized by the state they live in, if at all.

Here’s the catch.  As the “book” ages, along with the clients in it, more health problems begin to appear among the subscribers to that book.  Premiums rise among all clients retained in that book.  As premiums rise, clients who are still healthy seek less expensive plans, sometimes with other companies, but often with the same company which has responded to this situation by opening another “book” of insurance for which still healthy clients of the old book still qualify for.  And the process repeats with the clients in the old “books” facing the choice of unaffordably higher premiums in their old “book”, which has fewer and fewer clients sharing premium costs,  or dropping their insurance and, since they are now uninsurable, going without, i.e. going bare.  If they are lucky they have reached, or are near to, retirement age and are eligible for Medicare.  If not, they may be faced with bankruptcy and fall on whatever merciful services the state may, or may not, provide.  In other words, once responsible people who accepted the burden of purchasing self insurance against such untoward circumstances have been effectively “squeezed” out of the system.

Outline of Possible suggestions for insurance protection against the hazards of life and liabilities thereof:

The following comments are in part deliberately redundant for ultimate clarity.

  1. The key is to provide the availability of low cost basic insurance products with high deductibles that could be waived or reduced on a cost deferred basis if circumstance require.  Such a health insurance standard could provide a minimum threshold of access by using the following formula:
  2. Availability of Major medical insurance products for catastrophic injuries and illnesses with up to a $2 million dollar upper limit of  services and a range of deductible expense from $1500 to $3500 dollars.  Such policies are already available in most markets at relatively low cost.  This, along with suitable life and disability policies, would maintain the liability protection the employer enjoyed under Workman’s Compensation.
  3. Premiums shared between employer and employee at a ratio reflective of the employers Workman’s Compensation insurance costs per employee.  If the employee also carries a basic amount of life, disability and long term care insurance and the employer also shares these premium costs then the employee could be removed, by contract, from the employers Workman’s Comp coverage allowing/requiring that the savings be used to pay for his portion of the employee’s benefit or insurance premiums. It must be remembered that the purpose of Workman’s comp insurance is not to protect the employee, but to protect the employer from liability.  The same dollar could and should be used to do both. 
  4. Continuous coverage of all clients and their immediate family members regardless of age.  Once covered, always covered.
  5. Tax incentives for insurance companies for acceptance of pre-existing conditions with possible premium subsidy during build out of these regulations.
  6. Interstate marketability of all health insurance products and services to achieve maximum portability.
  7. Individual ownership of all insurance policies and the elimination of preferred group policies.  The American people are the “group”.  Premiums would vary according to personal lifestyle choices and regional cost of living indexes as well as deductibles selected.
  8. General Economic Goals: Promotion of ubiquitous ownership of insurance by all citizens by favoring employers who pay a substantial portion of the premiums for health insurance and other policies, such as life, disability, long term care and even individual unemployment policies that would serve to replace the inefficient, redundant and costly Workman’s compensation policies.  By doing so the savings from elimination of Workman’s comp policies could be applied directly to the totally portable individually owned policy premiums of the employee.  This in turn would result in more productivity on the part of the employee and his employer thus making both more competitive with their foreign counterparts and increase job security.
  9. A required health savings account that would be invested in a suitable index fund and grow over time such that the eventual earnings would supplement or even replace almost all premium payments on the part of the employer thus increasing the productive value of the older employee and job security for the same.  The employer would maintain a self-insurance fund to cover deductibles for workplace incurred injuries or illnesses.  Mandatory deductibles and/or waiting periods would discourage frivolous access to benefits since out of pocket expenses would be incurred first.
  10. NOTE: In the case of the younger employee or individual that incurred a catastrophic accident or debilitating health problem it would be more cost effective for the state to provide a program that would continue to pay the premium package for the victim than to assume total expense for his or her care upon bankruptcy.  However, an appropriate disability policy within the individuals personal health care trust should render this problem moot.  In addition, premium funding in such cases might become a proper role for remaining Workman’s Comp. duties.
  11. Such long term policies would not have age related limits and continue until death. Premiums could be required to contain a cash value account or the individuals health savings account could fund premiums into retirement as an annuity.  Any assets otherwise left in the individuals health care savings or trust would pass to the health care trusts of any and all direct survivors or descendants tax free, thus growing health care security in generations going forward.
  12. The individual could exchange any current policy contract for that of a more competitive company without loss of seniority or any such conditions at any time.
  13. These changes, when combined with a program of funding of an equity based individually owned retirement program for every child within the first year of birth, would eventually convert every citizen into an economic asset to the nation going forward instead of a liability requiring the forced servitude of others.  This or a similar approach would facilitate ownership of the economic destiny of the free individual by the individual. 
  1. (Note: the cost of deductibles might legitimately be mitigated by withholding payment of same until the health provider submits the unpaid debt to a collection service from which a lower payment may be negotiated without jeopardizing the deductible requirement.  This would depend on a providers unspoken willingness to defer up-front payment against the deductible in whole or in part and acceptance of differed and reduced compensation at a later date.  This could not, however, be a pre-arranged agreement between the patient and the provider.  The better solution would be payment of deductibles directly from a Health Savings Account or from a similar fund held by the employer and/or the employee for the purpose.  Certain economic conditions may deter collection agencies from purchasing such debt thereby rendering this approach unworkable. Workman’s Comp might be modified to cover upfront deductibles if private insurance is maintained by both parties. i.e. employer and employee. )

The efficient delivery of the above also requires cost stabilization procedures such as aggressive tort reform.  The health care environment can no longer sustain the gross expense of costly malpractice premiums that must be met by all those who are engaged in health care services and passed on to their patients. Life is not without inherent risk.  When the individual submits him or herself to the paid care of others they do so by their own authority, i.e their consent.  But the responsibility for the consequences remains with the individual giving that consent.  Only when behavior of the parties rendering such services rises to the level of gross and knowing negligence tantamount to fraud does reasonable cause for tort arise.   The Courts must cease to function as dens of legalized piracy by clever opportunists.   Eventually, with nearly everyone covered by their own full benefits package, the need to resort to litigation should subside except in the most egregious and compelling circumstances.

The management of risk  is the fundamental reason for the existence of the insurance industry in the first place.  It is a legitimate mechanism for reasonable compensation, not a mechanism for redistribution of wealth.  When we submit ourselves to treatments that are standard in the pertinent areas of endeavor we do so by our own authority.  The risk for untoward consequences remains with us.  We are therefore responsible as individuals for managing that risk rather than the presumption that some court of law will feel obligated to burden others with that liability even though compelling circumstances may be tenuous or even absent.

Many of the advances in medical and drug technology have their genesis within American based companies and research facilities.  As a consequence the use of the products of such research is highly costly domestically while available at much lower cost internationally.  Several remedies to this situation might be available.   We might consider extending the life of patent rights for effective new treatments and drugs to companies that reduce their initial domestic costs substantially and eliminate or greatly reduce income taxes earned on products and devices that are not redundant in the market and have a high proven efficacy.  Research on commonly available remedies should be studied and effectively enhanced and made available for use over the counter.  The barrier between highly advanced and expensive remedies and more commonly available agents such as aspirin and other possible compounds such as turmeric, niacin, or artemisinin, etc. should be aggressively evaluated and modifications, enhancements, and applications expanded wherever possible.

(E.G. It is ironic that artemisinin, for example, has proven to be a highly effective naturally occurring agent for curing malaria.  As such it has been available OTC over the internet for very low cost for several years.  There is some evidence that it may be useful in treating some types of cancer in animals and even humans.  However, in order to make it available to populations living in tropical malarial ridden environments a well known pharmaceutical company combined it with its older, less effective anti-malarial compound to make it patentable,  marketable and profitable.  This is similar to combining aspirin with caffeine or other ingredients, branding it, and marketing it at much higher prices than a more generic counter product even though the effectiveness is the same.)

Perhaps an intermediate level and more generic drug industry needs to be funded for research purposes to produce low cost products with evaluated efficacy and potential benefits over a broader range of maladies.  This is in keeping with the goal of empowering the individual with accurate information, inexpensive testing technology and more commonly available resources at lower costs thus enhancing his or her ability to exercise responsible authority and the choices thereof over themselves.

Note: artemisinin is a natural substance derived from the sweet wormwood plant, just as aspirin was derived from the bark of the willow tree.

Attention: Notice this in not a whine site.  This is a site for ideas. I do not suffer fools or naysayers well.  If you cannot make serious and thoughtful contribution to these ideas, begone.  I have no use for those who already “know everythingl” but seem to understand nothing.  Without understanding effective wisdom pertinent to any endeavor cannot be acquired.  I am about understanding.  Someone once said “success comes in cans, not in cant’s”.  I agree.

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Aug 09

The Right to Defend!

 

 

The Constitutional protections regarding the right to defend ones self  can be found in the 2nd and 6th Amendments to the Constitution.

THE RIGHT TO DEFEND ONE’S SELF IS MEANINGLESS IN THE ABSENCE OF THE MEANS TO THAT DEFENCE!  theBushwhacker 

The Second Amendment: A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

In addition the Fifth Amendment requires that no person: “shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

Further, the Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

The right of self defence throughout history has been and is considered by all reasonable people as a natural and fundamental right requiring no legislation.  Only more recent thinking (over the last and current century) has moved to deprive or restrict this right or even obliterate it all together for the sake of some notion of “the common good.”  The uniqueness of the American Constitution is the powerful protection it affords the least and lowest among us against the tyranny of the community.  Here the individual is the sovereign entity, not the State or the mob.

Clearly these Amendments identify certain of our natural rights as free citizens considered so essential to those freedoms that they were specifically protected by the Bill of Rights with the admonition to those in power DO NOT GO THERE!!

The Sixth Amendment both implicitly and explicitly guarantees the right of the individual to defend him or herself and the right to obtain or posses the means to that defence.  In the case of accusations at law the means is the acquisition of witnesses and of counsel for his defence. In the case of personal protection in society at large this means can only be a credible weapon of effective efficiency, in most cases a firearm, to deal with those who would act violently and illegally against that person.

In brief, the right to defend one’s self is meaningless without the means to that defence.  In today’s circumstances at large the only reasonable option is a personal firearm.

“Democracy is two wolves and a lamb voting on what to have for lunch.  Liberty is a well-armed lamb contesting the vote.”  Benjamin Franklin



The recent Candidate for the Supreme Court of the United States, when queried about the right to self defence, seemed at loss to identify and acknowledge this right under any inherent Constitutional protection.  The equivocation displayed was and is, upon confirmation, more than a little troubling.  To hand down a ruling contrary to this fundamental right would be to usurp that portion of authority held by the citizen without regard to responsibility thus constituting an act of tyranny.

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