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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)
Portrait, George Lakoff. (photo: Bart Nagel)

The Power to Make Metaphor Into Law

George Lakoff and Elisabeth Wehling, Reader Supported News

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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+33 # BradFromSalem 2012-06-25 12:59
How about this? If the mandate is tossed due to the leaky reasoning that Congress cannot force everyone to purchase a product sold on the open market, wouldn't the opposite also be true? That is, would Congress then lack the Constitutional authority to prevent any one individual from purchasing a product on the open market? If Congress cannot make laws regarding individual purchases doesn't that go both ways, both buying and banning purchases. The justification in both cases is exactly the same.

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.
+10 # mdhome 2012-06-25 21:24
Interesting. Another thought, would it not be a possibility to buy health insurance from Canada or the UK?
+1 # AMLLLLL 2012-06-27 15:30
Has no one read the actual mandate clause in the Law? It's completely toothless! Was it Scalia who was whining about reading the 2000 pages? He needed (and probably knew it) to read one page to see that the individual mandate has absolutely no consequences for the citizen. Watch the Last Word online:

It's a political power move on the right to discredit everything 'democratic'.
-38 # LonnyEachus 2012-06-25 13:30
Liberals try to do this willy-nilly. That interpretation of the "general welfare" clause is proven false.

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.
+37 # BradFromSalem 2012-06-25 14:25
And Health Care is not a General Welfare item? Yes the meaning is restrictive. It restricts Congress from passing a law that allows, I don't know, how about Big M-Fing Corporations to anonymously funnel money to politicians so they will do their bidding? hmmmm?
+6 # John Locke 2012-06-25 18:59
LiberalLibertar ian: Health care does fall under the general welfare clause as well as the interstate commerce clause besides health care is a natural right!

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!
+7 # BradFromSalem 2012-06-26 06:25
Technically, the law is that everyone is required to pay the "fine", which makes it a tax. You can avoid the tax by having a qualified Health Insurance plan or insufficient income to afford the tax.

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.
+5 # paulrevere 2012-06-26 11:01
Hear here! 'Necessity' it is!
+2 # John Locke 2012-06-27 10:43
LiberalLibertar ian: I am an advocate of Health Care as a basic Human right, yes there is much debate on the issue both for and against....Howe ver, Health Care is clssified and recognized as a natural right! in the Universal Declaration of Human Rights and by the World Health Organization's Declaration on the Rights of Patients. This concept of a 'right' to health care draws strong support from leading modern works on natural law and justice and responds to the arguments, both theoretical and practical, put forward against this proposition. It concludes with two warnings: (a) Even in a system where health care is said to be a right, this can be meaningless if the system does not promote basic health, fails to set proper legal and ethical controls or ignores the important individual rights of patients. (b) Our primary commitment must be to those persons who are denied access to health care. To them, talk of patient's individual rights is superfluous. They cannot claim such rights if they are denied the more fundamental right to be a patient.

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.

-1 # LonnyEachus 2012-06-27 23:51
Wishful thinking does not equal "rights". The WHO is a liberal joke.
+1 # John Locke 2012-06-27 10:45
Continued from above

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!
-1 # LonnyEachus 2012-06-27 23:50
Quoting LiberalLibertarian:
And Health Care is not a General Welfare item? ... Hmmmm?

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.)
+9 # mdhome 2012-06-25 21:27
"since then all fees or fines can be argued to be taxes. Conservatives are already making such arguments." I contend fees and fines cannot be taxes because republicans have been raising fees (in order to not have to raise taxes) and the have taken a pledge to their god Grover to never raise taxes.
+7 # BradFromSalem 2012-06-26 06:27
Romney did that in MA when he was our Governor. And you are right, he claimed it was not taxes but user fees and penalties.
+43 # tedrey 2012-06-25 14:08
Or what about this? The Constitution doesn't say a thing about corporations. They are incorporated by states. The Constitution certainly doesn't say that states HAVE to charter corporations. If they choose, they can refuse to charter traditional corporations, and authorize some other form of organization, under such rules and restrictions that seem proper to the state. Any interference by the Supreme Court in this would seem to be blatently unconstitutiona l.

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.
+1 # John Locke 2012-06-25 19:02
tedrey: Nice try, but NO!
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...
+3 # BradFromSalem 2012-06-26 06:32
It would make sense to have national corporate standards regarding the composition of the boards of directors, limits to the authority a charter may grant, and if the corporation is publicly traded then rules around senior management compensation.
+1 # John Locke 2012-06-27 10:51
Liberal: As the granting of a corporate franchise is retained by the states under Amendment 9 and 10, the only way for the Fed to legislate in that area is under the commerce clause, and there is an obsticle for the government to overcome, strictly intrastate corporate activity still can't be reached by the Federal Government
+2 # LonnyEachus 2012-06-27 23:57
And yet Tedrey is correct: States set the regulations concerning corporations. Corporations are not registered Federally, they are registered with a State. And States dictate: how they organize their Board of Directors (or whether they need one), the reporting requirements (unless they are publicly traded, at which time the Feds step in), how much stock and what kind (preferred, common, etc.) a corporation can create.

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.
+6 # BostonPundit 2012-06-25 14:13
If the general welfare power argument works then virtually anything Congress does could fit that characterization.
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.
-4 # John Locke 2012-06-25 19:08
The issue is the fine... if you choose not to participate. Also the benefit to a private enterprise the insurance carrier.

Now we are discussing the taking of private property under the 5th and 14th 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!
+7 # BradFromSalem 2012-06-26 06:43

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.
+3 # Raymond Dean 2012-06-25 14:51
The court can deal with metaphors in law only if the Congress creates them. Does this render the power of the 5/4 court less awsome?
+9 # panhead49 2012-06-25 14:59
If the government can demand a child be immunized before going to school seems rational that they can demand you have insurance. Much like motor vehicle insurance (whether you've ever used it or not) - even if you personally don't own a vehicle you are paying the insurance of every vehicle that brings everything you find in your house to the local store). If you can't afford it (oh where art thou single payer?)the gov picks up the tab because the immunization is to insure the 'general welfare'.
-1 # John Locke 2012-06-25 19:12
panhead49: I believe you can opt out of immunizations apparently as much as 39 % of the population refuse or delay getting it for their children...
+10 # Michael_K 2012-06-25 15:12
If health care is a general welfare item, why is it insured "for profit", ensuring a higher cost to the citizen? this logic isn't sustainable.
+4 # John Locke 2012-06-25 19:17
Michael_K: I believe in relity it does fall under the General Welfare clause so that Congress has the authority to legislate or regulate it, My concern is the legislation. is it for private benefit? meaning the private insurance companies benefit, the Single payer option would be appropriate, but to require we obtain insurance or we will be fined, I believe is where the law becomes questionable and unconstitutional

When lawyers legislate, they more often then not don't understand what is lawful and what isn't...they lack knowledge in constitutional law!
+7 # Michael_K 2012-06-25 15:17
When Janet Napolitano's ICE is used to wrongfully enforce copyright infringement that never happened, and UK Home Secretary May agrees to extradite a student, despite no law having been broken, and there being no nexus to the United States, then the "law" is a very insignificant thing, to be used or swept aside, depending on one's mood or purpose.
+2 # John Locke 2012-06-25 19:23
Michael_K: I don't know the particulars but there are ways to obtain jurisdiction, example defamation... a false comment about someone originating from the UK, under the right circumstance the injured party in the US can sue in our courts because the harm to the reputation occured everywhere. and especially where the Plaintiff lived. Generally the complaint must be filed where the act causing the harm occured! But in the senario I just offered I would attempt Jurisdiction in our court system
+5 # Mrcead 2012-06-25 15:25
But everyone knows Conservatives are rubbish at metaphors. There is a reason law does not allow metaphors, not everyone is on the same page in interpreting a metaphor.

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.
+15 # eyarden 2012-06-25 15:41
Mr. Lakoff,

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
+14 # asbpab1966 2012-06-25 16:02
Healthcare is NOT a traditional consumer product. It is the only unequal necessity; one person can require $250, another $250,000. And you generally can't "shop around" as you can for, say, a flat screen TV. There is not much difference in price. A person needing health care may be unable to run around looking for a bargain if one exists. And there is a time factor; you can do without a TV indefinitely; you may need health care immediately or die.
+4 # BostonPundit 2012-06-25 16:05
"Back in 1978, linguists Michael Reddy and me (George Lakoff), working independently, demonstrated ...."

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.
+1 # MHAS 2012-06-26 09:33
Actually, the "I do not want the insurance" has nothing to do with paying now and everything to do with being compelled to pay it to for-profit private insurance corporations thus further filling their coffers and increasing their power and influence. I prefer pooling my money in a public fund in the spirit of mutual aid rather than having it available to be skimmed by parasites. That the government might subsidize my payments is yet another shifting of public monies to the private sector. The entire health care system should be public.

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.
+2 # LegendBert 2012-06-25 16:23
Metaphors aside, the ACA is constitutional and to rule otherwise is subversive.
+14 # politicaleconomist 2012-06-25 16:48
Obviously for so many reason we need single payer.
Similarly, corporations should have a national chareter.
-1 # John Locke 2012-06-25 19:26
Banks do!
+7 # davidr 2012-06-25 17:48
Yes, metaphor is essential to conceptual thinking and thus to our legal system. "Equal justice under law" involves metaphor, and so does the use of precedent.

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.
+4 # dick 2012-06-25 21:53
Why do people let themselves get dragged into these silly arguments? SCOTUS has shown it can create Life ("person") with the stroke of a lie. It can reverse an election on a whim. In class warfare there is ONLY Power. Disregard Agitprop PACs, vote for people who will, unlike Obama, indict banksters, tax billionaires, provide Public Option health insurance, appoint progressive justices. Karl Rove isn't a debater, he's a WINNER. The left needs WINNERS, not whiners. Save the sophistry for Sunday School.
+1 # LonnyEachus 2012-06-27 23:59
Karl Rove isn't a "winner", either. He just backed winners.

Big difference. The coach is not the athlete, though he may be influential.
+2 # KrazyFromPolitics 2012-06-25 23:08
Healthcare compared to broccoli, corporations are argued to be the same as persons. Abstraction and philosophical tirades with their penetrating logic hasn't received much traction for progressive causes, lately. Aside from their blatant dishonesty, the far right wins their voters with appeals to morality, sentimentality and good ol' fear. I can't understand why the Democrats and left-of-center independents can't seem to find a frame/metaphor that shames the living hell out of the neo-cons for their inhumane proposals and policies and the perversity of their hypocrisy about being "God fearing Christians" who would let their brothers go without healthcare, food, and clothing, not unlike the Michael Moore scene in "Capitalism"... with Jesus saying, "Sorry Lazarus, you have a preexisting condition". Left leaning intellectuals, come out of your ivory tower and stop being more interested in being right than winning elections. Being simple doesn't have to be simplistic or unethical. Witness the right.
-6 # Dougded 2012-06-26 06:20
What's the matter poor babies, liberal leaning lower court judges have been doing this for decades. As long as it's what you like , right or wrong, it's ok!!! Well, go cry to the chaplin,maybe he;ll give a poop!
+1 # RobertMStahl 2012-06-26 07:55
Voluntary tax code? Statutes versus regulations (Larken Rose)? Google dead scientists and see what this has morphed into with the advancement of the Old Guard in the electronic age.

Google Indira Singh Guns and Butter, too.
William Binney of the NSA.

The late Joe Vialls
+4 # tedrey 2012-06-26 08:24
The following is from

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:

+2 # Roger Kotila 2012-06-26 13:17
Is health care a right, or a privilege? According to the EARTH CONSTITUTION (drafted to replace the obsolete UN Charter), health care is a right.

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.
+2 # jayray2k 2012-06-26 19:50
I find it hilarious when people argue against the general welfare. If that is your belief...if you think the Founding Fathers would stand here and argue against the general welfare, then you need to, sir, are not American. This is the Preamble of the Constitution... it is what everyone memorizes in Elementary School. It is what this country MEANS. Before it was legislated to death and parced to pieces by lawyers and other greedy people who want to keep it all. You, while claiming to be a "true" American, are not American at all. You are a poser.
+1 # WahSupDoc 2012-06-28 10:20
The irony of decision made based on interstate commerce clause when insurance companies aren't regulated by interstate commerce rules just blows my mind. Until we stop 'tinkering' with a health care delivery system that's already failed and expand Medicare to cover everyone cradle to grave AND stop placing value of corp profits over value of human lives, we're never going to really fix our health care system.
+1 # Gregory Wonderwheel 2012-06-28 12:54
LOL! Professor Lakoff now has the bragging rights to say "I told you so."
+1 # Gregory Wonderwheel 2012-06-28 13:01
Today's decision was a good decision because it continues the long tradition of upholding a law if it can be supported by any legal reasonsing (i.e., metaphor) even if that metaphor and reasoning were not the ones used by the legislature in enacting the law.

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.
0 # Inspired Citizen 2012-07-24 07:51
Lakoff and Wehling wrote, "as Citizens United showed by making the metaphor Corporations Are Persons into a law...," but that is not true. The SCOTUS has been granting corporations constitutional rights for 123 years. They were granted 1st Amendment rights in 1976.

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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