Saturday, December 5, 2009

AGW: The Quadrant Problem

There are two main axes of belief on the question of anthropogenic global warming. The first is whether or not it is happening. The second is not whether or not we should err on the side of caution. Everyone agrees that we should. The question is what constitutes caution: protecting the environment, or avoiding economically-costly regulation.

The thing is, these beliefs are, or should be, orthogonal. Opinions on one question should not determine or even influence opinions on the second. If people were thinking clearly, public opinion would be arrayed in the quadrants independently. (This is a different matter than evaluating one's own certainty; most wise people would say they are not quite certain if AGW is happening, but if forced to guess would be able to do so without recourse to a coin-toss.)

If we designate:
  • Position A as: "Human activities are warming the environment significantly"
  • Position B as: "Human activities are not warming the environment significantly"
  • Position 1 as: "We should err on the side of protecting the environment"
  • Position 2 as: "We should err on the side of protecting the economy"
then we would quickly find that positions A1 and B2 have many more proponents than A2 and B1.

Compare this to a substantively different, formally similar grid, regarding the opinions of a group of dinner guests as to whether the host should take his leave of the party in order to investigate strange noises emanating from the garage:
  • Position A is: "The noises from the garage are a raccoon robbing the trash cans."
  • Position B is: "The noises from the garage are creaking beams, nothing to worry about."
  • Position 1 is: "We should err on the side of preventing the raccoon from spreading garbage around."
  • Position 2 is: "We should err on the side of avoiding confrontation with a possibly rabid animal."
In this case I believe that the quadrants would be represented independently, i.e., if A2 is three times as popular as A1, then B2 must be three times as popular as B1.

The difference, of course, is scale. Position 1 on the AGW question may involve spending huge sums of economic wealth; I surmise that many who hold Position B avoid Position 1 for this reason. This is a natural enough position, psychologically, but I don't regard it as quite logically defensible. It is reasonable to err on the side of the environment while dismissing AGW as a certain or even plausible phenomenon. In that case the logical way to protect the environment would be some combination of:
  • protecting biodiversity and native habitats of threatened species,
  • minimizing waste, especially of artificial gasses (often halocarbons) with long half-lives,
  • continuing intensive study of climates, coastlines, icebergs, the atmosphere, etc.
This is the responsible, cautious position; the notion that protecting economic growth is a more cautious path than protecting the environment is an error caused by axis confusion.

Saturday, November 28, 2009

They told me ...

They told me if I voted against Obama, that by the end of 2009 we still wouldn't be bringing any troops home from Iraq and Afganistan.

Turns out they were right!

Monday, June 29, 2009



Ricci v. DeStefano

Audacious Epigone has more to say about the Ricci case, as does Steve Sailer. David Kelsey is his usual sugar-coated, mealy-mouthed self* on the issue. (I'll post some more links as I find good stuff on this matter.) Ilana Mercer's piece is also quite good.

* Note to the irony-impaired: David Kelsey is never "mealy-mouthed"; he is direct and clear, without ever quite being irate.

It's time for equality.

End affirmative action now.

Wednesday, June 24, 2009

Rightist Convergence: Affirmative Action in College Admissions

There is an endless debate over whether differences between ethnic groups have genetic or cultural causes. It is a fascinating debate, and it will be interesting to see which position the genetic research of the next five years lends itself to.

That said, the genes-versus-culture debate is largely a distraction on many of the really pressing issues of today. One of these issues is affirmative action, and the resulting dispossession of white and Asian males. Whether differences in average qualifications are caused by different biology or different culture is beside the point, because while genes can't (currently) be changed, affirmative action is likely to change culture for the worse. Thomas Sowell details the pernicious effects that affirmative action has on both culture and race relations in every country where it is in effect. It should be clear to modern rightists that affirmative action has not worked and cannot work.

One defense of affirmative action in college admissions takes the form of comparisons between AA on the one hand, and legacy and geographic-diversity admittance on the other. If colleges can make decisions to favor out-of-staters over locals, and children of alumnae over "the rabble", then why shouldn't they be allowed to favor blacks and Hispanics over whites and Asians? My answer is: be consistent. Private colleges should be allowed to make whatever idiosyncratic admittance decisions their hearts desire, as long as they don't take taxpayer money.

Public colleges and grant-taking colleges should have no such freedom. Research grants improve the career prospects of those who take advantage of them, yet admittance procedures make very little attempt at assessing merit objectively. Tax money should not be channelled to students based on whimsical notions of diversity, nor should they be channelled based on loyalty to the marginally-qualified children of well-connected families.

What about leadership, extra-curricular activities, and the like? These are so subjective that it can't even be explained why they're important. Someone's penchant for joining clubs, or their "leadership potential", isn't going to shepherd them through difficult classes or prevent them from dropping out. "Leadership" is simply a bureaucratic, diversicratic code-word for membership in a privileged (non-Asian) minority group. Extra-curricular activities are a similar sham, since it's pretty clear that being "President of the Students of Color Club" is going to be treated differently than being "President of the White Students' Club". Taxpayer money should not be spent on such scams.

What criteria should a public college be allowed to use in admittance? The ACT and its Educational Testing Service equivalents, class ranking by grades, portfolios, and auditions. The latter two are of course not strictly objective; talents for art, music, and drama can't really be assessed objectively but they are certainly valid fields of study. Subjective criteria could theoretically be a back-door way of showing favoritism by race and legacy, but the effects should be minimized if subjective criteria are applied to a limited number of slots.

Such a move will of course be upsetting to those parts of the academic establishment that practice these admittance procedures and take taxpayer money. To mollify their alumnae, a lot schools will have to stick with legacy admits, which will necessitate that they stop taking public funds. If this means that public grants are reduced and/or shared across a broader range of establishments, so be it. Just as there is no reason to believe a university is better off with students from a greater number of states, there is no reason to believe research is better done in a university than in a lab, think tank, or research firm setting. Finally, it's not completely clear why research needs taxpayer funding anyway; if it is so worthwhile, a research project should have little trouble winning any number of private and independent backers.

Sunday, June 14, 2009

Constitutional Reform: Legislatures

Since it is my belief that the Federal government won't exceed its legitimate authority only if its legislature is a direct reflection of that of the states, this essay will deal with both. I'll start at the top.

The United States Senate

The process for selecting the Senate as originally detailed by the framers needs little improvement. States - not just the voters of the states - are entitled to equal representation in one branch of the Federal legislature. The 17th Amendment robbed the states of this, and this is one of the reasons for the catastrophic expansion of Federal power. One small improvement that could be offered would be to specify that bicameral legislatures meet in joint session to elect their US Senators (without this feature, many states required each legislative chamber to elect the same individual separately, which caused extended vacancies in this office).

The United States House of Representatives

Providing for direct elections to the US House of Representatives was the single greatest error the framers made (second only, perhaps, to their failure to address the issue of secessions). Direct elections make the US House an independent Federal body, exactly what a loose grouping of sovereign states should not have. However, the brief, 2-year term of the House, quite a desirable feature, would not be a good idea combined with election by state legislatures. With their Representatives on such a short leash, the states would be sending precise instructions on how to vote. This sort of intervention is far too direct. Furthermore, it would be in any state's interest to use a sort of winner-take-all system to prevent its members from canceling one another out, making it likely that all members of a delegation, no matter how big, would vote the same way. This would amplify and distort the results of legislative elections in large states.

A better alternative would be neither direct nor indirect election, but rather, randomly co-opting members of each state's lower legislative chamber to be US Representatives. Any system a state can devise is allowed, so long as it provides each lower-chamber member an equal chance of being selected. Thus it would behoove the states to make their lower-chamber size a multiple of their US House delegation, so a contiguous swath of lower-chamber districts could be knitted into a single selection pool for each US House seat. This would ensure that each large region (approximately 700,000 people) would get representation.

The currently used system of apportioning members to states on the basis of population is fine with me, as is the fairly generous Congressional paycheck.

Sessions of Congress

The Senate has the option to remain in session after the House goes out of session in June. The Senate creates an Executive Committee - one member from each state - to remain in the capital when it goes out of session.

The Executive Committee can call the Senate or the whole Congress into emergency session. The President can call an emergency session of Congress if national security demands. Finally, the House calls an emergency session of Congress when one fifth of its members transmit a demand for one to the Executive Committee.

State Legislatures: Upper Chambers

I support the continued power of states to choose how their governments are constituted, but I also have clear ideas on how their systems could be reformed. Each state's upper chamber should be elected statewide by list voting, using a simple system of partisan proportional representation. The body's membership should be quite limited in size, perhaps 25 to 30 members, for two reasons. First, because I envisage this as a professional, full-time body, so the per-member cost will be much higher for the upper than the lower chamber. Second, because limiting the size is an elegant way of creating an effective threshold of representation - a 25-member house naturally theoretically has an threshold of 4% of statewide votes to win a seat (though the largest-remainder system can reduce this in practice). More populous states can always move to a system of a few large constituencies of 15 to 20 members; this would retain the threshold while ensuring proper representation of large regions.

Though the election is partisan, parties need not be given a direct role in ballot access. Nonpartisan ballot access systems use both nominating petitions and deposits (though as far as I know the latter are not currently used in the United States). I advocate both a nominal petition requirement, say, the signatures of 25 or 50 people registered to vote in the state, plus a deposit, set to equal 1% of the annual salary of the highest-paid state official. This deposit would be used to create a free voters' pamphlet with information provided by the candidates. The deposit would be returned to each candidate on any list that won one or more seats.

State Legislatures: Lower Chambers

In marked contrast, I advocate state lower chambers be large, part-time bodies. To minimize costs, pay should be minimal, probably just enough to cover travel expenses. Members should number between 300 and 400, and be elected from small districts of between one and three members, depending on population. Ballots should be nonpartisan, and approval voting should be used (note that I don't agree with the Wikipedia article that approval voting is necessarily a single-winner system - it can easily be used in multimember constituencies, with the two or three most-approved candidates being elected).

Ballot access should be by petition only, using the same small number of signatures as for upper-chamber races. Parties could of course still endorse candidates, though party label wouldn't appear on the ballot (and in my opinion it would not really be feasible for party bosses to keep track of so many candidates).

Notes: Bicameralism

The first thing you'll note about the above proposals is the dramatic differences between the ways each body is composed. This is intentional. One of the advantages of bicameralism is the ability to cancel out the disadvantages of the various systems.

Specifically, at both levels of government the upper house is composed of full-time legislators who will accept being in the capital most of the time, and who rely for their office both on popularity among voters and the support of other politicians. The lower houses, in contrast, are composed of part-time legislators, with state legislators not generally receiving a significant salary (but US Representatives would continue receive compensation equal to that of US Senators). The former provide experience and political skill; the latter provide the voice of ordinary working people, and a close local connection.

There are two reasons for making the smaller house professional and the larger house part-time: first, because beyond legislation (which can and should be done during a limited season, rather than year-round, see below), it is the traditional job of the upper houses to approve or reject executive appointments (which can happen at any time of year), and second, because in any joint session, the citizen legislators will outweigh the professional legislators by sheer weight or numbers.

Timing of Legislative Sessions

Given that both Congress and the state legislatures used to meet for only a small part of the year, it should be quite feasible to time their sessions for minimal overlap. States could replace any lower-chamber member who became a US Representative, but with the sessions properly timed, they wouldn't have to. Regular sessions of the US Congress should be limited to January through June; regular state legislative sessions should run July through December. In addition, the US Senate and state upper chambers would be called into brief sessions for confirming executive appointments, or they could simply have extended regular session of their own. The latter alternative would allow the upper-house committees spare time to study various technical issues. Finally, provisions for emergency sessions of each legislature would be advisable.


Political parties are a fairly natural phenomenon. They have their pros and cons, but I think it is best if their energies are channelled instead of suppressed. A zero-party system may be best of all, but a multi-system is better than a two-party system (which, it must be admitted, is better than a one-party system). Partisan influence is minimized by a multitude of small-scale legislative races, in which candidates can physically meet a large percentage of their voters (New Hampshire legislators each represent an average of 3000 people, not all of whom are voters). Using list voting, with any party list topping 5% guaranteed a seat in state upper chamber, should effectively abolish the duopoly.

Since only a small fraction of each state legislature would go on to the US Congress, local issues would dominate election campaigns. The public would have no choice but to focus on their own state governments. The character of US House would almost exactly match that of the states, yet no deal-making would influence their selection.

Proportional Representation

There are several arguments against proportional representation, and none of them is applicable here. First, a common American perception of PR is that it necessarily represents every group, not merely ideological groups, in proportion to its numbers. This is false. The racial PR system advocated by the likes of Jesse Jackson is a complete novelty, it is not in use anywhere that I am aware of. Actual PR attempts to represent parties fairly, not genders, races, sexual orientations, or religions.

Second, PR is said to produce an unlimited number of parties. This is false, since constituency magnitude, or formal thresholds, can limit the number of parties to any number desired.

Third, when combined with a cabinet that serves at the pleasure of the legislature, PR is said to create unstable coalitions. It is indeed the option of a state to create this sort of cabinet government (i.e. the "parliamentary system"), but in the unlikely event that one of them did, it would probably make the cabinet dependent on support in the lower chamber, which under this proposal would be nonpartisan.

Constituency Size and the Legislator-Citizen Connection

Looking at the upper chamber, it's easy to criticize a constituency the size of a small state (or, say, one-third the size of a large state) for being too large to allow much connection between elected officials and their electors. I counter that the system I advocate, when applied to most states, would provide closer legislator-citizen connections (in the lower chamber) while not significantly increasing the salary cost of the legislature (because the bulk of the members would be almost unpaid).

Constituency size, at the Congressional level, is a mostly intractable problem. With each Congressional district having twice the population of Iceland, we shouldn't kid ourselves that national legislators are going to have much personal connection to their constituents. After these reforms, the public will be talking to the Federal government through their state governments, which is exactly as it should be.

Constitutional Reform: Federal Judiciary

After a lengthy discussion at Unqualified Reservations (not attended by Mencius Moldbug, of course, who is in the basement of his clanky, steam-punk-looking laboratory concocting new resets and reactionary coup plots), I began thinking about how judges should be selected. The primary goal would be the defeat of such modern monstrosities as "legal realism", i.e., the arrogation of power by left-wing judicial activists in the name of equality and social engineering. A related goal would be the restoring to the states the rightful powers guaranteed to them by the framers of the Constitution.

Some suggest constitutional amendments to fulfill these goals. The obvious measure would be a measure barring the Federal government from using any power not expressly delegated to it in the body of the Constitution. A logical first move, but it was already tried in 1791. The 10th Amendment is essentially a dead letter, since it allows the Federal government very little scope to practice the social engineering demanded by the leftist establishment.

It may be more informative to look at the way judges are selected. It made sense in the 18th Century to give this power to the President, back when that office was viewed primarily as commander-in-chief with important duties in appointing and overseeing a few Federal officials, vetoing primarily those laws considered unconstitutional, etc. Those attracted to the office would primarily be elder statesmen with little interest in making their ideology prevail on controversial issues.

With the popular election of Presidential electors, that is no longer the case. The voters expect the President to fix the economy, bring social justice, expand their rights, and bring America worldwide respect while creating world peace, among other things. Someone filling this position can't be accepted to favor appointees who take a restrained toward their duties. Instead, Presidents seeks appointees whose philosophy matches their own, and that philosophy is shaped by the attitudes of a citizenry not overly concerned with policies being carried out at the proper level of government.

This is a recipe for ever-expanding Federal power, and when combined with the power of judicial review, it is downright dangerous. To deal with this, I advocate the below system for selecting the Federal judiciary.

District Judges

Lawyers having practiced law for five years, in good standing, may take the examination for the purpose of becoming a Federal judge. An individual may retake the exam a maximum of once every three years. Exams are graded anonymously by individuals chosen according to a statute. The top scorer (or scorers if there is a tie) from each of the last three years, who live in the District with the vacancy or one adjacent, are the pool from which each vacancy is filled. The new judge is selected at random from this pool.

District Judges automatically retire at age 65.

Circuit Judges

District Judges on the bench for three years, in good standing, are eligible to being elected Circuit Judge by the Federal Judicial Council. During each vacancy on a Circuit Court, every state’s FJC members can vote except those whose territory overlaps that Circuit. Secret ballots are used. To be on the ballot, each name requires one FJC member to nominate and one to second the nomination. Only Judges sitting in one of the Circuit's Districts may be nominated. An absolute majority is required for election at the first ballot; an overall majority of the votes is required for election at any subsequent ballot. No new names can be submitted after the first ballot; after any non-decisive ballot, the name with the fewest votes is eliminated from all subsequent balloting.

Circuit Judges appointed after age 60 serve for ten years. Those appointed before age 60 automatically retire at age 70.


Upon each vacancy on the Supreme Court, the Federal Judicial Council creates a binding list of three names to send to the House of Representatives. Before the voting, any sitting Circuit Judge in good standing can be put into consideration upon a nomination and a second by FJC members. Voting continues until three candidates each have the votes of 20% of the members, at which point the list is finalized to the candidates with the largest numbers of votes. If three votes are taken with the list not finalized, the candidate with the lowest number of votes at any vote is excluded from subsequent voting.

The House of Representatives elects someone from the list by secret ballot. A majority of the votes is required; if no one is elected at the first ballot the last-placed candidate is eliminated and another secret ballot held.

Justices appointed after age 65 serve for ten years. Those appointed before age 65 automatically retire at age 75. Seats can be added to the court by statute, but no more than one seat can be added every two years.

Federal Judicial Council

This Council is composed of delegates appointed by each state’s executive. Each member serves a 6-year term, and they are staggered so that one-sixth of the membership retires annually; they are permanently ineligible for re-appointment. Each state has a number of members equal to the square root of its US House delegation, dropping fractions (i.e. if it has between nine and fifteen US Representatives it gets three judicial delegates. Given the 2000 Congressional apportionment, this system would produce 113 Council members if only states were included.)

The Council:

  • Appoints and oversees the individuals who create the District Judge exam (who may or may not be Council members)
  • Has final say to approve or disapprove the District Judge exam
  • Elects Circuit Judges from among sitting District Judges
  • Recommends a list of candidates from among sitting Circuit Judges to the US House of Representatives preceding election to the Supreme Court


The FJC, with its hand in judge selection at every level, should strongly influence the ideological character of the Federal judiciary. The FJC's ideology will of course be a reflection of that of the state governors, who are likely to zealously guard state power. Other than that, FJC members from one state will have little in common with those of another state, creating a broad tapestry with the most radical ideologies canceling each other out.

Furthermore, the FJC is only the decisive force at one level (the Circuit courts). The decisive force at the District level will be the graders, and it is up to Congress to create the method whereby they are picked. A possible system would be: have each paper made anonymous and scored by three separate graders, one faculty member from an ABA-approved law school in the District (the law schools represented on a rotating basis), one randomly-selected Federal judge (serving or retired) from the Circuit, and an individual appointed by the US Attorney General; each exam's final score would be the median of the three grades it received. (The decisive force for Supreme Court appointments is the US House of Representatives, which I discuss in another post.)

Of course, were this plan to gain any real support, resistance would likely coalesce around all the most sensible provisions, namely, the elements of randomness and the use of square roots. Also, the FJC would be anathema to some as "the creation of a new Federal bureaucracy" (though in terms of employees the FJC is very small compared to the rest of the judicial branch). Still, I think there is no way to solve the problem of judicial activism in the Federal court system without recourse to some sort of standardized test and some random selection.

Friday, June 12, 2009

Rightist Convergence: Abortion

This is the second in a series of posts suggesting compromise positions, intended to break the impasses which currently divide the right against itself.

It may at first seem ridiculous to try to build a consensus on an issue as contentious as abortion. Abortion seems to be an ideological litmus test, but more than that it is a seemingly unbridgeable gap. This misses an important point - a nationwide ban on abortion is not up for debate. There would be no constitutional power for Congress to ban it. The current abortion-obsessed political climate was largely created by Supreme Court fiat. I refer of course to the Roe v. Wade decision which claimed to find backing for first-trimester abortion rights in the United States Constitution, specifically, in the 14th Amendment.

Roe v. Wade should be overturned, either by another court decision, or by a constitutional amendment clarifying due process. As it stands now, the 14th Amendment is far too elastic, and allows the courts to overturn any state law based on rights of privacy it asserts to be part of constitutional due process.

Privacy rights should be broad, and clearly stated in the decisions or constitutional amendments which end the Roe v. Wade era. Obviously there is more latitude to do this with with a constitutional amendment, which makes that the preferable route. Though the debate about what these rights should be may prove quite long and arduous, the enormous Supreme Court overreach of Roe deserves a quick remedy. Conservatives who favor the continued legality of abortion should organize at the state level to keep it legal by statute. Likewise, those on the other side should organize to deliver state-level bans.

Friday, June 5, 2009

Is English a Second-Class Language?

Obviously, official English is a contentious issue for the United States, wrapped up in complex issues like America's alleged status as a "propositional nation". What is interesting is that our English-speaking neighbors to the north are in a complex situation quite different (and yet, as I will show, subtly similar). Canada is a federation, like the United States, and thus each province chooses for itself what its official languages will be.

In theory, this makes perfect sense, since the linguistic details are quite different, province to province. Provinces have powers approximately equal to that of an American state or a Swiss canton. A province can be completely bilingual, completely monolingual, or it can have a main language (official to all institutions) and a secondary language (official to some).

Yet, the details of the actual arrangement come across as a little odd. Here are the provinces ranked by population, with percentages of English and French speakers, and the status of the languages in provincial government:

Quebec - 81.8% Francophone, 10.6% Anglophone - French only
New Brunswick - 69.0% Anglophone, 29.7% Francophone - fully bilingual
Ontario - 81.4% Anglophone, 2.5% Francophone - English main, French 2nd
British Columbia - 83.0% Anglophone, 0.5% Francophone - English main, French 2nd
Manitoba - 88.0% Anglophone, 1.8% Francophone - English main, French 2nd
Alberta - 89.5% Anglophone, 0.7% Francophone - English main, French 2nd
Saskatchewan - 94.4% Anglophone, 0.5% Francophone - English main, French 2nd
Nova Scotia - 96.2% Anglophone, 1.9% Francophone - English main, French 2nd
Prince Edward I. - 97.1% Anglophone, 2.1% Francophone - English main, French 2nd

Newfoundland - 98.8% Anglophone, 0.1% Francophone - English main, French 2nd

This is all the result of decisions of the individual provinces, yet patterns emerge. Looked at from a naturalist's perspective, instead of a political scientist's, the "law" would mean what predictions one could make based on viewing these patterns. If one were to go about this like a common-law judge, it would be easy to "discover the law" of official language in Canada.

If one in four residents of a province speaks French, French is guaranteed official status equal to that of English; English can hold its own if two-thirds of the population speak it.

If one in a thousand residents of a province speak French, France is guaranteed at least secondary official status. However, one in ten residents of a province speaking English does not guarantee any official status to English.

If four of every five residents of a province speaks French, France is guaranteed exclusive status as an official language. However, 98% of a province speaking English does not guarantee English any exclusive status.

Thus, the property that emerges from the collective provincial language laws is that a French speaker is worth between two and one hundred times as much as English speaker.

I raise this issue not because Canadian Anglophones are uniquely lacking in political will - quite the contrary. British police arrested an English girl for asking to be placed with students who spoke English (it was considered a "racist" incident and her request was manufactured into a "refusal" by the London press). Attempts to make English the official language of the United States are similarly branded, though the percentage of Americans who speak English as native (82%) is even higher than that of Canada (67%).

It is not just language that unites Canada, the UK, and the USA. It is also a crisis of confidence stemming from distortions of the Anglo-Saxon liberalism of James Mill and Jeremy Bentham. Historians can debate exactly when liberalism became leftist, exactly when xenophilia became Anglo-bashing, and the debates will prove very interesting. In any case, the idea of enforced multilingualism is a prime example of pluralism without clarity. It will prove quite costly.

Monday, June 1, 2009


This regards the upcoming series of posts suggesting compromise positions, intended to bridge the gaps which currently divide the right against itself.

In finding ways around impasses, it is useful to have a decision rule, something external the process of forming opinions and measuring power.  There is no Pope, Supreme Court, or even dean of the modern right.  In the United States, however, we do have our Constitution, and a tradition by which rightists believe it should be interpreted using originalism and/or textualism.

This being the case, an obvious solution to many quarrels among rightists trying to answer the question What shall we do? would be to follow up with the question What does the Constitution allow us to do?  This is important because a combined reading of Article I Section 8 and the 10th Amendment mean, at the Federal level, there is very little we can do.  Hence, we can reduce the number of things to argue about.

For example, I argue that abortion, as an issue, evaporates when originalism shows that the Constitution forbids the Federal government from either legalizing or banning it.  Free trade debates are made simpler when it is shown that the worst forms of protectionism - subsidies to failing businesses - are quite unconstitutional, leaving much less virulent strains of trade restriction to be debated over.  Furthermore, there should no debate over "national health care" in a country whose national legislature has no power over health care.  

Obviously, the Constitution isn't going to clear up all disputes, but it is an excellent starting point to start moving beyond the shallow litmus tests and shouting matches that leave the right divided and weak.