Lakoff and Wehling write: "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."
Portrait, George Lakoff. (photo: Bart Nagel)
The Power to Make Metaphor Into Law
25 June 12
erhaps 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 making the metaphor Corporations Are Persons into a law, 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 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 - but only if the Supreme Decided.
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 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 a 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?
Indeed, could the Court decide whether the Metaphor Power of the Court itself is constitutional?
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Comments
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So I do believe that next Thursday everybody whip out your pipe and light up, because the SCOTUS will be ruling that Congress may not make laws regarding what items any individual may purchase.
http://www.msnbc.msn.com/id/3096434/#47972054
It's a political power move on the right to discredit everything 'democratic'.
History CLEARLY shows that the clause was restrictive, not permissive. I.e., any law Congress might OTHERWISE make must be in the general welfare, as opposed to that of a select few.
It does NOT mean Congress can do anything it wants as long as it is in the "general welfare"! That is a distortion & contrary to historical evidence.
Just one example:
"If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction ." -- James Madison, letter to Edmund Pendleton, January 1792.
In other words (as evidenced by the Articles of Confederation as well as Madison's words), Lakoff's interpretation of "general welfare" is a "misconstruction".
There are many, many such explanations of the phrase in historical documents. It is not something that is vague or unknown.
Government is authorized to impliment a health care mandate, the problem is the fine, if you don't take the insurance that is where this legislation over reached!
Its a cutesy way around your point, and I could easily be convinced that it is in fact a fine under the "looks like a duck" rule. Either way, if you have a mandate, there does need to be a way to enforce compliance. Also, as a last point, I am not comfortable defining Health Care as a right, but rather as a necessity. Health Insurance provided by an employer as a benefit of the job is certainly NOT Health Care.
http://www.ncbi.nlm.nih.gov/pubmed/1484463
an explication of natural law theory by reference to the writings of Thomas Aquinas, as well as elucidate the complementary “capabilities approach” of Martha Nussbaum. Would conclude that a right to health care ought to be guaranteed by the state.
http://jmp.oxfordjournals.org/content/36/6/537.abstract
Continued
Advocates of universal health care as myself, often describe health care as a “human right.” The idea of human rights implies "natural rights", which are those that we have by virtue of our "humanity". Natural rights are universal and inalienable I believe all people are entitled to health care where ever they live and under what ever type of government they have established...W e provide for government to provide for our well being!
You missed the point entirely. Answer: "Yes. Health care is NOT a 'General Welfare' item."
By "restrictive", what is meant is that "General Welfare" does NOT expand the powers of the Federal government, in any way, beyond the powers specifically enumerated in the Constitution.
And the enumerated powers do not come anywhere even close to authorizing Obamacare. Not even on the same planet.
"General welfare" means laws that the Federal government might OTHERWISE enact, under the legitimate powers enumerated by the constitution, must ALSO be in the "General Welfare" of The People, as opposed to the benefit of some particular group.
That clause does not expand the power of the Federal government over what the Constitution says elsewhere that it may do. And here's a hint: the Constitution does NOT say the Federal government can do this. The Constitution is explicit: if it does not particularly describe something that the Federal government may do, then the Federal government may not do it! Any such thing is reserved "to The States, and to The People."
It doesn't matter if health care is "in the general welfare", in a commonly understood sense. (And in fact it is not: Obamacare actually benefits only one small category: those with pre-existing conditions. EVERYBODY else pays more than before, and most already do.)
The thought just now crossed my mind. Let's brainstorm other ways to hoist ourselves out of the old grooves the fat and greedy powers would like us to remain mired in.
The Federal Government has the mandate to regulate commerce among the States in that Regard they can reach corporations, and they have several ways to do so. Impact is one; how a business impacts commerce in another state, hotel accomodations because they draw travelers among the states. farmers because their crops influence prices in other states and on and on...
And so on. Unless it's a PUBLICLY TRADED corporation, at which time Interstate Commerce probably applies, the Feds have nothing to do with them. Federal control ONLY applies to companies with publicly traded stock, and even then their control is limited.
Interstate commerce does not involve only products - services too come within its ambit.
There is no question that health care involves commerce.
The syllogism is not abstruse: people who use the health care system must pay for it. Congress can regulate the prices charged. One way to ensure that all will pay rationally (i.e. not impose a burden on society) is to ask all to prepay. That is effectively what insurance does. If so, Congressional action is well within the power to regulate commerce.
But that begs the question whether Congress may force people who have not used the health care system to buy into it in anticipation of future use.
Not sure if the metaphor stuff gets fouled up.
Now we are discussing the taking of private property under the 5th and 14th Amendments...fo r public or private use?
does this amount to a taking of private property and is it for a private use? or a public one?
These are all considerations! There are many arguments against this legislation because it was not thought through for the benefit of us!
There is only one solution to Health Care when you think it through. This bill could not get through Congress as a well thought out plan that would be a large step toward solutions to rising medical costs. Instead it was what could get through, especially past the Republicans and their Blue Dog pals. Those people do not care about benefiting people first, they truly believe that helping business helps us. Their brains are stuck in reverse and while they have access to power only tiny steps forward such as Obama/Romney Care can get through.
http://children.webmd.com/vaccines/news/20100505/more-parents-refuse-delay-childs-vaccination
When lawyers legislate, they more often then not don't understand what is lawful and what isn't...they lack knowledge in constitutional law!
http://www.guardian.co.uk/uk/2012/jun/24/richard-odwyer-extradition-threat-tvshack-net
The flat screen analogy is stupid. You get better service from buying any retail premium product than you do with healthcare, especially since the US ranks a dismal 34th in the world. By rights, our system should be managed by a better group with a better record.
Likening healthcare to a flat screen TV merely leeches the boiling anger over undeserved rhetorical flat screens to gain support over a real world concern - which is the typical tactic of an unbalanced ex-girlfriend.
Metaphors are supposed to teach and enlighten, not manipulate and enrage.
Leave the metaphor making to the English majors and poets please.
And if corporations are supposed to be like people, many are way past retirement age and need to be put in homes or buried already.
Making points does not require dumbing down with marketable explanations.
There is a discursive employment of language for the purpose of arriving at a rational consensus. If corporations do not choose, act, do damage, interfere, plan and intend certain consequences to the neglect of others that might concern me, then what are they in tort law? I am quite sure that the concept of person as studied in philosophy might include constructed personhood as including the notion of a "natural person" even independently of personal identity.
As for health care not being a "Product," my sympathy with your concern does me no good. In a market society, health care is a commodity, and treated as such, as much as ideas are patented, and titles are copywriter and sold.
The fungibility of money is just that. When I pay a fine, I am not paying taxes, any more than when I choose to buy insurance or to not do so. For the government to impose a tax on me proportionate to my income or wealth, or a progressive tax on all of us, that would enable all of us to receive the health care that each one of us might require, is very different from compelling me to buy insurance that I do not want. There are good reasons why the insurance corporations might support Obamacare. I would prefer a health care system that the insurance corporations would find unprofitable.
Elie Yarden
Cambridge, MA
From a professor of linguistics and a cognitive linguist, no less. "Michael Reddy and I ... demonstrated... ." As in "Michael Reddy demonstrated" and "I demonstrated" but not "me demonstrated."
This is how MEtaphor gets messed up when you are really after the Idea and not the MEdia.
For Elie Yarden, the compelling part of the compulsion argument may come down to how the judges decide whether the health care you require (hence want, when you need it) is fungible with the insurance you require (hence want when you need the health care). The "I do not want" is not a statement that you do not want to insurance but that you do not want to PAY for it now.
Looked at that way, insurance is merely a funding mechanism or a spreading of risk - the risk is extant and ongoing.
If paying for risk is commerce, which it is because insurance is commerce, then whether you call it a product or service, it survives constitutional challenge because you are an ongoing participant in the risk pool.
I think I'm going to form the Metaphor Insurance Co. or maybe the Metoophorit Ins. Co.
cheers
Guiliani's analogy should have been a gift to anyone who is not a psychopath--tha t the Dems never grabbed it and ran with it tells you a great deal about their own investment in the market paradigm.
Similarly, corporations should have a national chareter.
But metaphor can never be the last word. It is always provisional and, by its very nature, invites scrutiny.
Is a child laborer a child or a laborer? How is one commerce clause case like another? If a corporation is a person, can it vote when it's 18 years old? If money is speech, well, so is bribery and extortion. Any metaphor will necessarily contain argument and counter-argumen t.
In the case of Citizens United, SCOTUS has chosen 5-4 to overlook the complicated questions begged by the implicit metaphors. It isn't a better metaphor that we need, but a better SCOTUS.
Big difference. The coach is not the athlete, though he may be influential.
Google Indira Singh Guns and Butter, too.
William Binney of the NSA.
www.RememberBuilding7.org
The late Joe Vialls
The [early post-revolution American states] also imposed conditions [on corporations](s ome of which remain on the books, though unused) like these:
* Corporate charters (licenses to exist) were granted for a limited time and could be revoked promptly for violating laws.
* Corporations could engage only in activities necessary to fulfill their chartered purpose.
* Corporations could not own stock in other corporations nor own any property that was not essential to fulfilling their chartered purpose.
* Corporations were often terminated if they exceeded their authority or caused public harm.
* Owners and managers were responsible for criminal acts committed on the job.
* Corporations could not make any political or charitable contributions nor spend money to influence law-making.
***************************************
So we've come a long way backwards. To see the steps in our retreat, read the whole article at:
Fromhttp://www.reclaimdemocracy.org/corporate_accountability/history_corporations_us.html
A side note for Christian capitalists: Take note that Jesus healed for free. No charge. You didn't need medical insurance. You didn't need money.
However, a good decision doesn't make it a good law. The Affordable Health Care Act is a bad law because it is a windfall for private insurance corporations. We need to repeal it, not in the right wing looney bin of repealing it for nothing, but we need to repeal it by replacing it with real universal single payor health care like all the other economically developed democracies have. In the USA context the simpleset form for this would be a Medicare For All Act that simply removes the age requirements from Medicare.
This is a mistake that many people make, but it does lie at the root of Citizens United. To overturn Citizens United, we need to abolish corporate constitutional rights and end the doctrine that money is speech, also ruled so by the Court in 1976.
Corporations are property that must be at the service of humans, not the other way around. That is the metaphor that must be used to overturn the democracy-endin g decision, Citizens United.
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