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Supreme Court in the US hears arguements on Affordable Health Care Act

3/31/2012

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Interesting debate on The Affordable Health Care Act (so called Obamacare) before the Supreme Court last week. The biggest issues centered on the mandate which compels every citizen to purchase health insurance. The second issue relates to the severability of the mandate portion from the rest of the bill.

In Canada, we do not have this problem because in Ontario,  at least, we have public insurance that government of Ontario provides. We pay into it through taxation. In the US, they have medicare but also have private insurance.

The problem that is unique in this case is that the federal government is positively mandating you to purchase something (in this instance health insurance) and the constitution does not give the federal government that power except where it relates to commerce and this is precisely where the debate is joined. The government is claiming the federal government does have that power due to the unique nature of the health care market.

The audio of the oral arguments from Day 1 Tuesday are below and the transcript here. Here are some of the questions posed to the lawyer representing the administration, Solicitor General Verrili.

 JUSTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we're not seeking to defend the law on that basis. In this case, the -- what is being regulated is the method of financing health -- the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And -

JUSTICE SCALIA: So, any self-purchasing? Anything I -- you know, if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.

GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market -- the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement -- those who for religious reasons don't participate, those who are incarcerated, Indian tribes -- virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot -- people cannot generally control when they enter that market or what they need when they enter that market.

CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true, say,  for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So, there's a market there. In some extent, we all participate in it. So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- we -- I don't think we think of that as a market. This is a market. This is market regulation. And, in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter, but when they

CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need, but when you do -- and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it.

It goes on according to that theme and it is very useful to listen to the argument. I thought Justice Kennedy brought up the fundamental issue later in the transcript.

JUSTICE KENNEDY: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?  I understand that we must presume laws are constitutional, but, even so, when you are changing the  relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?


Scalia raised the federalist point that Romney has actually raised; namely that this is a state issue and not a federal one.

JUSTICE SCALIA: ... The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?

Here is the dagger, I think.

JUSTICE KENNEDY: But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

On the other hand, Justice Ginsberg made a good point drawing an analogy to social security which is constitutional.

JUSTICE GINSBURG: Mr. Clement, doesn't that work -- that work the way Social Security does?  Let me put it this way: Congress, in the '30s, saw a real problem of people needing to have old age and survivor's insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don't have the healthy in it, there's not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute.

There was a big fuss about that in the beginning because a lot of people said -- maybe some people still do today -- I could do much better if the government left me alone. I'd go into the private market, I'd buy an annuity, I'd make a great investment, and they're forcing me to paying for this Social Security that I don't want.


And Justice Sotomayor make a really good argument around automobile insurance and if the federal government could compel people to buy automobile insurance.

JUSTICE SOTOMAYOR: But we don't in car insurance, meaning we tell people, buy car -- not we, the States do, although you're going to -- I'll ask you the question, do you think that if some States decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?


Finally, and I will end here. Here is Breyer's argument.

JUSTICE BREYER: Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car. But we also know here, and we don't like to admit it, that because we are human beings, we all suffer from the risk of getting sick, and we also all know that we'll get seriously sick. And we also know that we can't predict when. And we also know that when we do, there will be our fellow taxpayers through the Federal Government who will pay for this. If we do not buy insurance, we will pay nothing. And that happens with a large number of people in this group of 40 million, none of whom can be picked out in advance.


Now, that's quite different from the car situation, and it's different in only this respect: It shows there is a national problem, and it shows there is a national problem that involves money, cost, insurance. So, if Congress could do this, should there be a disease that strikes the United States and they want every one inoculated even though 10 million will be hurt, it's hard for me to decide why that isn't interstate commerce, even more so where we know it affects everybody.

But that's constitutional. So, if Congress could see this as a problem when we need to have a group that will subsidize the ones who are going to get the benefits, it seems to me you're saying the only way that could be done is if the government does it itself; it can't involve the private market, it can't involve the private insurers. If it wants to do this, Social Security is its model. The government has to do -there has to be government takeover. We can't have the insurance industry in it. Is that your position?


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Response to Kony 2012

3/28/2012

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Kony 2012 is an internet phenomenon that has had over 85 million hits on YouTube.  I have mixed feelings and thoughts on it. On the one hand I am very gratified that social media is being used to raise awareness of important social and international justice issues. I am grateful that young people are engaged in a cause for justice and peace. Certainly, bringing attention to childhood exploitation is a good thing.

At the same time, I think that we need to be responsible regarding the complexity of the issues. The simplistic personification of evil as residing in one charismatic figure is not helpful and contributes to cartoonish caricaturing. I also think that we have to be careful of the colonial mentality that suggests that the children are "invisible".  The implication is that the only way children can be visible is if a white, middle class Western male makes them "visible".

Additionally, in discussions on this subject a colleague caught a gap in the Kony 2012 video. America has deployed 100 troops to central Africa. Uganda is more on the eastern side of Africa. The actual country that is in central Africa is the Democratic Republic of the Congo that has the largest reserve of Coltan/Tantalum which is the material used to make cell phones, Ipads, etc. It is probably not accidental that there is a global interest in the minerals that can be harvested there.

I hate to be the skunk at the picnic and I am glad that there is a movement that young people are gravitating to. I just do not want to see them becoming jaded and cynical later. I think it would just for Kony to be captured and brought to justice for war crimes. However, there are other current issues that we can and should be turning our attention to. At least this is a beginning of bringing global awareness to young people's consciousness and that fact alone justifies the entire phenomenon.

Consequently, I am not going to "hate on" (as the young people say) Kony 2012. However, below is a video that a young woman who is from Uganda posted in response to the entire Kony 2012 phenomenon that is useful for young people to see to provide balance.

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Marlon Brando recites The Hollow Men

3/27/2012

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I found this clip from the redux of Apocalypse Now. I don't know why Coppola did not include this scene in the original film. Marlon Brando's Colonel Kurtz is one of the all time iconic characters and the poem perfectly typifies the experience of the war and world weary Kurtz who has seen way too much of the dark side of humanity and its suffering. This poem is one of the most famous of T.S. Eliot's poems. It is a haunting poem and Brando delivers it with great force and passion. The music is effective but ultimately not necessary as the poem itself is music. Brando adapts a bit of it but overall it is a great recitation of one of the classic poems of desolation. I love the ending of Eliot's poem, "This is the way the world ends...not with a bang but a whimper".

The poem evokes powerful images of modern life with its alienation and lack of transcendent meaning. On another level the poem captures the experience of clinical depression and the emptiness of life's meaning in a post-Christian world. Eliot himself underwent a profound spiritual conversion that enabled him to have clarity of vision without becoming lost in a nihilism from which there is no exit. In this poem there is no redemption from despair. The hollow men forget the concluding part of the Lord's prayer "For Thine is the Kingdom...." and eventually their voice trails off such that they celebrate the worlds end which is itself as anti-climatic as the whole of their lives. Truly haunting.

                                                      The Hollow Men

T. S. Eliot

Mistah Kurtz—he dead.

A penny for the Old Guy

I
We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!
Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats' feet over broken glass
In our dry cellar

Shape without form, shade without colour,
Paralysed force, gesture without motion;

Those who have crossed
With direct eyes, to death's other Kingdom
Remember us—if at all—not as lost
Violent souls, but only
As the hollow men
The stuffed men.

II
Eyes I dare not meet in dreams
In death's dream kingdom
These do not appear:
There, the eyes are
Sunlight on a broken column
There, is a tree swinging
And voices are
In the wind's singing
More distant and more solemn
Than a fading star.

Let me be no nearer
In death's dream kingdom
Let me also wear
Such deliberate disguises
Rat's coat, crowskin, crossed staves
In a field
Behaving as the wind behaves
No nearer--

Not that final meeting
In the twilight kingdom

III
This is the dead land
This is cactus land
Here the stone images
Are raised, here they receive
The supplication of a dead man's hand
Under the twinkle of a fading star.

Is it like this
In death's other kingdom
Waking alone
At the hour when we are
Trembling with tenderness
Lips that would kiss
Form prayers to broken stone.

IV
The eyes are not here
There are no eyes here
In this valley of dying stars
In this hollow valley
This broken jaw of our lost kingdoms

In this last of meeting places
We grope together
And avoid speech
Gathered on this beach of the tumid river

Sightless, unless
The eyes reappear
As the perpetual star
Multifoliate rose
Of death's twilight kingdom
The hope only
Of empty men.

V
Here we go round the prickly pear
Prickly pear prickly pear
Here we go round the prickly pear
At five o'clock in the morning.


Between the idea
And the reality
Between the motion
And the act
Falls the Shadow
For Thine is the Kingdom


Between the conception
And the creation
Between the emotion
And the response
Falls the Shadow
Life is very long


Between the desire
And the spasm
Between the potency
And the existence
Between the essence
And the descent
Falls the Shadow
For Thine is the Kingdom


For Thine is
Life is
For Thine is the

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.



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I'm a Modern Man

3/26/2012

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George Carlin nails it!!
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Supreme Court rules that Aboriginal History must factor in sentences

3/25/2012

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In what is sure to have a significant impact on justice in northwestern Ontario, the Supreme Court of Canada ruled that considerations must be given to aboriginal history when sentencing violent offenders. The original case involved two men on long term supervision orders were sentenced after violating their conditions.

Writing for the majority, Justice LeBel wrote "To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and, of course, higher levels of incarceration for Aboriginal Peoples"

This case involved more violent offenders so just think of the application that this ruling can and should have for non-violent offenses. First Nation people are significantly over-represented in the criminal justice system.


Read the full story from CBC here: Aboriginal history must factor in sentences, Supreme Court says.
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Creativity

3/25/2012

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There has been some very interesting and current articles on creativity and the creative act. I linked some videos on the creative element in jazz by Bill Evans. I am noticing a fair amount of articles and research on creativity.

Berdyaev, one of my favourite philosophers, maintained that creativity is the imago Dei for humanity, a mysterious element unique to human beings. Berdyaev wrote a very good book in 1916 entitled The Meaning of the Creative Act. In it he wrote that creativity is the mystery of freedom and that only the person who is free creates. He writes:

Creativity is something which proceeds from within, out of immeasurable and inexplicable depths, not from without, not from the world's necessity. The very desire to make the creative act understandable, to find a basis for it, is failure to comprehend it. To comprehend the creative act means to recognize that it is inexplicable and without foundation.

Berdyaev was a religiously oriented philosopher who maintained that salvation is not so much from something such as sin as it is to enable us to be for something. And that for something is the creative upsurge of humanity.

More recently, I came across an interview from NPR's All Things Considered. The interviewer discusses creativity with Jonah Lehrer, a writer specializing in neuroscience, addresses the question of creativity in his new book, Imagine: How Creativity Works.

The interview is embedded below. Lehrer uses Steve Jobs as an example of how creativity is a social process. Lehrer says:

He (Jobs) wanted there to be mixing. He knew that the human friction makes the sparks, and that when you're talking about a creative endeavor that requires people from different cultures to come together, you have to force them to mix; that our natural tendency is to stay isolated, to talk to people who are just like us, who speak our private languages, who understand our problems. But that's a big mistake. And so his design was to force people to come together

On the whole theme of the necessity of people coming together for creativity I came across the article The Social Networks of Emily Dickinson, Paul Gauguin & Charlotte Bronte. It is a very interesting article which supports the idea of collaboration and connection. Even the famous loners and people who love solitude, Dickinson, Gaugin and Bronte, had their most creative outputs when they were connected in some way in vital relationships. Bottom line according to the author is "Communication, collaboration, and social networks contribute to creativity."

Finally, if you are not feeling creative, Lehrer has this suggestion:

What you should do then — when you hit the wall — is get away from your desk. Step away from the office. Take a long walk. Daydream. Find some way to relax. Get those alpha waves. Alpha waves are a signal in the brain that's closely correlated with states of relaxation. And what scientists have found is that when people are relaxed, they're much more likely to have those big 'A ha!' moments, those moments of insight where these seemingly impossible problems get solved. So when you hit the wall, the best thing you can do is probably take a very long, warm shower. The answer will only arrive once you stop looking for it.

.....The answer will only arrive once you stop looking for it. Very zen but ground in neuroscience.

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Don't tease the middle aged guy

3/19/2012

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A little humour from my old  favourite, Dr. Katz Professional Therapist. Dr. Katz's son plays a practical joke on his dad. "What is so funny about growing old?" Ha Ha.
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Thomas Merton prayer

3/18/2012

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A great prayer from the Trappist monk, Thomas Merton from his book "Thoughts in Solitude".

My Lord God,

I have no idea where I am going
I do not see the road ahead of me.
I cannot know for certain where it will end.

Nor do I really know myself,
And the fact that I think I am following
your
will does not mean that I am
actually doing so.

But I believe that the desire to please
you does in fact please you.
And I hope that I have that desire in all
that I am doing.
And I know that if I do this, you
will lead me by the right road
though I may know nothing about it.

Therefore will I trust you always
though I may seem to be lost
and in the shadow of death, I will
not fear, for you are ever with me
and you will never leave me
to face my perils alone.


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Duke Ellington on Freedom

3/18/2012

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I was watching Ken Burns' documentary, Jazz.  last night. It is an excellent history if anyone is interested and available on I Tunes which is where I purchased it. In it, he had a clip of Duke Ellington's US Presidential Medal of Freedom acceptance speech in 1969. Ellington had this to say of the four major freedoms to live by:
  • freedom from hate, unconditionally;
  • freedom from self-pity;
  • freedom from fear of possibly doing something that may help someone else more than it would you; and
  • freedom from the kind of pride that could make a man feel that he is better than his brother.
Great words of wisdom and good point of reflection.


Picture
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Happy St. Patrick's Day

3/17/2012

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Happy St. Patrick's Day. There is a lot of discussion on the real St. Patrick and what he represented for the Irish people. Certainly, Ireland has historically been strongly identified with the Catholic Church. The Irish brand of Roman Catholicism had a significant impact on the kind of cultural Catholic practices of Canada and the United States particularly in Newfoundland and Boston respectively.

Recently, the abuse crisis facing the Catholic church has been particularly acute in Ireland. In February of 2012 Archbishop Martin of Dublin had this to say about the crisis of the Church in Ireland:

The real roots of the religious crisis in Ireland are deep and of a different character than many would wish to admit.  They are linked with a crisis of faith, among individuals and within Irish society.

That crisis of faith then manifests itself in a crisis about the Church as an institution within a broader context of a change in the cultural infrastructure which had traditionally sustained the faith of people but which has become much more fragile over the years.  Ireland is a highly secularised society and secularisation should not leave us unmoved.


I am not talking about crusading, but we must admit that unfortunately the Church in Ireland was slow and is slow in recognising the fragility of the infrastructure of faith and in many ways continues to think that the challenges of tomorrow can be addressed with the pastoral methods of yesterday. For their part many well-intentioned outsiders fail to understand the particular characteristics – both historical and contemporary – of the Irish Church and they fail to understand the depths of the current crisis.

The musical artist, Sinead O'Connor is certainly not an outsider and had direct experience with the institutions of the Catholic Church in Ireland. She spent 18 months in  Grianán Training Centre which is a youth detention facility that inspired the famous movie the Magdalen Laundries. It was there that a nun gave her her first guitar. She also experienced childhood trauma and abuse.

Sinead O'Connor has been bringing attention to some of the issues for some time and wrote about the crisis of abuse and the Catholic Church in the Washington Post two years ago here

Here is an excerpt:

Almost 18 years ago, I tore up a picture of Pope John Paul II on an episode of "Saturday Night Live." Many people did not understand the protest -- the next week, the show's guest host, actor Joe Pesci, commented that, had he been there, "I would have gave her such a smack." I knew my action would cause trouble, but I wanted to force a conversation where there was a need for one; that is part of being an artist. All I regretted was that people assumed I didn't believe in God. That's not the case at all. I'm Catholic by birth and culture and would be the first at the church door if the Vatican offered sincere reconciliation.

As the English poet Alexander Pope wrote, hope springs eternal. On this St. Patrick's day, this famous prayer of St. Francis sung by Sinead O'Connor is a fitting prayer for reconciliation and healing. 

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    The title of this blog is an allusion to the famous work of Blaise Pascal.  This blog represents the variety of my interests and thoughts on any given day and are  strung together, like Pascal's Pensees, in no particular order. I work in the field of mental health,  education, and human rights. I write and am a human rights advocate. I enjoy poetry, jazz, spirituality, politics and a potpourri of other interests that you will see reflected in this blog.

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