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the health insurance mandate does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.

Einer Elhauge, professor of law at Harvard, founding director of the Petrie-Flom Center in Health Law Policy: via NYT

Professor Elhauge enters the healthcare debate with a precise refutation of the but they’ll make me eat broccoli contingent. So say the many critics of the healthcare legislation passed by congress. If the government can make me buy health insurance, what’s to stop them from making me buy broccoli or worse. Elhauge finds these critics and their adherents baseless for three reasons, all of which point to a perversion of the debate based on a faulty understanding of the Constitution.

It happens that we are already legally bound to purchase healthcare. It’s called medicare, and everyone must contribute to medicare as a condition of employment. Elhauge points out that some might say one can always forgo employment and, therefore, it’s not a mandate. But, asks Elhauge, is that a difference of substance?

If we were to entertain a difference of substance, Elhauge has a constitutional lesson for these opponents. The discussion of the commerce clause, argues Elhauge, is a red herring. Yes, one can invoke it to support the present healthcare reform, and precedents, such as Wickard v. Filburn, provide legal cover. He does make a technical point that the healthcare reform law would need to be phrased differently and offers the following: anyone who has engaged in any activity that affects commerce must buy health insurance. Nonetheless, the broccoli contingent will still have their will it only stop when they make me eat broccoli editorials. Perhaps yes, Congress could make you eat broccoli, but Elhauge reminds us that there is nothing in the constitution against making stupid laws, and not all laws requiring purchases are stupid – example, airbags.

Elhauge swiftly moves from the commerce clause, however, to the necessary and proper clause. If the discussion around the commerce clause is a red herring, the necessary and proper clause is unambiguous.

The mandate is clearly authorized by the “necessary and proper clause,” which the Supreme Court has held gives Congress the power to pass any law that is “rationally related” to the execution of some constitutional power.

Because the law requires insurers to cover everyone while also restricting premiums, it is necessary and proper to the execution of the law to compel everyone to seek coverage. If not, premiums would skyrocket, coverage would be untenable, and the law would fail.

The commerce clause is important, but it’s not the only mechanism at play. The necessary and proper clause provides a critical underpinning to healthcare reform. By narrowing the debate to the commerce clause, healthcare reform’s critics have introduced a red herring and avoided a proper analysis of the law.

Rising deficits. Burgeoning questions about economic recovery. A long shadow of war and conflict. These issues sound familiar today, but they share a common thread with the story of Eubulus in the fourth century BC in Athens.

The Athenian economy and culture had come undone. The war between the Greeks and Thebes had stretched on for many years and nearly bankrupted them politically and financially. The once tight control over the Greek city-states exerted by Sparta and Athens had withered with defeats in Leuctra in 371 and Mantinea in 362 BC, followed by the Social War. It was at that time that Eubulus took control of the Theoric Fund and engineered a remarkable recovery, the benefits of which accrued to both himself and Athens.

We find in Eubulus one of the first technocrats. Rather than pursue an imperialist policy bent on tributes, he recovers the Athenian economy through trade and investment. He incorporates the latest thinking on government and the economy from the likes of Xenophon. But today many remember him as a weak and corrupt precursor to the vigorous rise of Demosthenes and his noble resistance to Philip II of Macedon.

The Eubouleus Marble, a Roman copy after a Greek original

Today, the United States finds itself in similar circumstances. War. Economic despair. With the Obama Administration, we have a technocrat and his company in the Whitehouse. And we see the same clash, but this time, the press might call them populists or, perhaps, Republicans. Replace Demosthenes with Richard Shelby or Dick Cheney and shift the subject to the turmoil in the economy or the pervasive threat of terrorism and al Quaeda. Does the Obama administration face the same fate as Eubulus?

Eubulus gained broad influence over Athenian finances and politics through control of the Theoric fund. It is suggested that Pericles had instituted the fund to provide for festivals and various state expenditures. Perhaps most potent was the control over the amusements of the multitude. These captured the imagination of the citizens of Athens and distracted them from their wretched state. Control of the Theoric fund meant control over the access to and production of these events.

Though the appeal of free tickets may have helped Eubulus enhance his position among Athenians, unlike conventional descriptions from Britannica, for example, it did not figure greatly in his rise to power. Following the Social War, which ran from 357 to 355, the annual revenue of the Theoric fund had dropped to hardly 130 talents and hardly warranted the attention of ambitious Athenian politicians, such as Demosthenes. Moreover, election to the Fund only lasted one year.

Eubulus’ rise to power marked a decisive shift in statesmanship. Through careful maneuvering, Eubulus converted the Theoric fund to the Theoric Commission. The details are unclear on how he accomplished this, but he effectively came to control the Athenian finances in their entirety. He then focused on two things. First, to increase the revenues of the state and bring about some financial stability. Second, to increase the general prosperity of all Athenians. Both of these ambitions, however, would be approached in an entirely new way, one similar to that described by the recent publication Xenophon’s On Revenues (355 BC).

Xenophon’s On Revenues argued that Athenian wealth depended on trade, not tributes. His realization ran counter to the common wisdom. Most Athenians viewed their imperial tendency as the mainspring of their wealth, and poorer Athenians believed this most vigorously. City-states that did not pay signaled lost opportunities and the continuation of the poor’s mean condition.

Xenophon proposed creating a fund to finance the engines of trade. Citizens would contribute, and “most of the Athenians will receive annually more than they have contributed.” The fund would make investments in trade and the infrastructure related to trade. These investments would result in increased state revenues, a growing economy, and the resulting wealth of the Athenians. Xenophon said, “the more people settled among us and visited us, the greater the quantity of merchandise, it is evident, would be imported, exported, and sold, and the more gain would be secured and tribute received.”

For ancient Athens, Xenophon’s ideas were a meaningful departure from the policy of imperialism and the rapacious collection of tributes. Rather than rely on the grinding effort of collecting revenues from other city-states, Xenophon proposed that Athenian economic growth through trade would more than suffice. Indeed, he specifically argued against tributes and the military adventurism that they required: “if the full revenues from the state are to be collected, there must be peace.”

Eubulus engaged Xenophon’s ideas in earnest and perhaps also improved upon them. He set about three major changes to stimulate the economy, drive revenues, and enhance prosperity. First, he moved forward with taxing the Metics, who were resident aliens in Athens. Second, he invested in the encouragement of trade and traders. Third, he raised money for direct investment in capital projects, such as the repair of walls, ports, and other facilities to stimulate the economy, support trade, and improve the lot of Metics and citizens alike.

The results would speak for themselves. Rather than raising money through eisphora–essentially tax-increases, or levies–Eubulus financed his policies with direct borrowing, so it would present less of a strain on the citizens. By the year 346, the revenues had increased to 400 talents a year, almost thirty times the revenue when he introduced the Theoric Commission in 355 and took control of the Athenian finances. And just as Xenophon suggested, he continued to pay out a small amount to Athenians every year.

Joseph Addison’s Mr. Spectator would bring Eulubus the technocrat to life in 18th century London as a paragon of the Spectator’s audience: the emerging middle class. He eulogized Eubulus in Spectator [no. 49] as one who “presides over the middle Hours of the Day.” He holds reign over the Men formed for Society, whose “Entertainments are derived rather from Reason than Imagination.” They met after those in the morning rose, met in the coffee-houses and “published their laziness,” and before the Monarchs of the afternoon or Tom the Tyrant in the evening.

The Eubulus figure at midday is the embodiment of the Addison’s trader and business-man of the coffee-house. He approaches decisions with dispassion and a keen focus on the economic end: “He does not consider in whose Hands his Mony will improve most, but where it will do most good.” These qualities engender loyalty and ambition to “speak after him” and be “wise in his sentences.” Mr. Spectator would say of those that followed his Eubulus: “Every Man is Eubulus as soon as his Back is turned.”

But just as leadership in Mr. Spectator’s metaphor would shift to the Monarchs of the afternoon or Tom the Tyrant in the evening, the political climate would change for Eubulus in 4th century Athens. The growing wealth of the Theoric fund began to arouse interest in Demosthenes, who hadn’t paid any attention to the Theoric Commission in 355. By 349, however, Demosthenes began to pressure Eubulus to finance an expedition to Olynthus, and the subsequent record of his speeches illustrate the depth of his ambitions and the measure of his opposition to Eubulus and his allies only grew as he pushed for military funds.

Demosthenes sounded the alarm for Philip II of Macedon’s steady approach on Greece, and Eubulus became his foil. Athens faced a real, existential threat from Philip, so caution was warranted, and Demosthenes argued ceaselessly and credibly for intervention. Eubulus had also made a strategic error. Between 355 and 351, Eubulus passed a law that mandated all excess revenues of the state would pass to the Theoric Commission, not the military’s stratiotic fund. Theoric funds could not be applied to military adventures and expenditures, and those that did would be put to death. According to Demosthenes, Eubulus had hamstrung the people.Demosthenes

While the Theoric Commission had done much to improve the Athenian finances, it also paid a dividend to the citizens. Demosthenes would suggest that these payments amounted to a bribe. The citizens were reluctant to give up their individual gain for the greater good. In the First Olynthians, Demosthenes begged, “With regard to the supply of money, you have money, men of Athens; you have more than any other nation has for military purposes. But you appropriate it yourselves, to suit your own pleasure.” By implication, the policies of Eubulus enervated the citizens by giving succor to their selfishness.

Historians would take up Demosthenes’ criticism and mine a thick vein of contempt for the policies of Eubulus. He became the flatterer, a man of the multitude, a man of money, not the military. Eubulus brought on, whole cloth, the decline and fall of Athens on Philip’s approach. In Matthew Arnold’s Numbers, he would quote an unnamed, though temperate German historian: “The grandeur and loftiness of Attic democracy had vanished, while all the pernicious germs contained in it were fully developed. A life of comfort and a craving for amusement were encouraged in every way, and the interest of citizens was withdrawn from serious things.” John Gillies’, in his History, called Eubulus “an artful flatterer of the multitude,” and said, “it was vain for Demosthenes to resist the popular torrent.” The 1910 Britannica laid its own accusations: “there is no doubt that he took advantage of his position to make use of the material forces of the state for his own aggrandizement.” And Theopompus of Chios, writing during Eubulus’ time in his Philippica, claimed, “Eubulus raised a great deal of money and distributed it to the Athenieans, and in consequence the city became exceedingly cowardly and exceedingly lazy during his administration.”

Plutarch would remember Demosthenes as the sole countervailing force to Philip’s advance. Eubulus hardly appears, and in his place stands the firm, steady hand of Demosthenes and his constant warnings of Philip. In his Lives, Plutarch writes, “We have nothing of this kind to say against Demosthenes, as one who would turn aside or prevaricate, either in word or deed.” Instead, Demosthenes rises as one who can make difficult, unpopular decisions: “he pursuades his fellow-citizens to pursue not that which seems most pleasant, easy, or profitable; but declares over and over again, that they ought in the first place to prefer that which is just and honorable, before their own safety and preservation.” Though many, including Eubulus, would experience Demosthenes’ attacks, Philip remained his focus.

But are these criticisms of Eubulus warranted? Yes, the Athenians were unable to repel Philip. He took Olynthus in 348 and would soon force Athens into the embarrassing Peace of Philocrates. But it was not because Athens could not advance its military, they merely had to change the law or raise a levy on the citizens. Moreover, Professor G.L. Cawkwell at Oxford has argued that a defense of Olynthus would have been a military disaster. He also shows that far from starving the military, it grew under Eubulus’ administration. Cawkwell would conclude that, no matter the rhetoric, Athens was merely out-classed militarily and politically by Philip. They could not win, for the circumstances were set against them.The circumstances, however, would provide Demosthenes his foil and color Eubulus and his company an enemy of Athens. Whether he deserved the charge did not matter.

Demosthenes’ passion and his speeches overruled history’s favorable treatment of Eubulus. Eubulus would be known as a technocrat who captured the finances and administration of Athens but lacked the gall to make hard decisions, stir the languishing tendencies of the majority, and face down the true problems of the state. The details that Cawkwell would surface were too soon overrun by the speeches of Demosthenes, his followers, and those that would wish to tell the tale. Arnold would write of Eubulus’ Athens: “Plato was right afterall: the majority were bad and the remnant were impotent.” Eubulus would become synonymous with this impotence and the fall of Athens. Eubulus, however, was neither impotent nor responsible for the fall of Athens, but with Athens no match for Philip, Eubulus’ accomplishments would be no match for the passion and speeches of Demosthenes.

When Demosthenes finally met Philip II of Macedon, he was said to have fainted at the sight of him. The man who Plutarch introduced as the accomplished orator, the one who overcame stammering pronunciation by speaking with pebbles in his mouth, who recited speeches while running or going up steep places, so he could discipline his voice, was so overwhelmed by Philip that he crumpled to the floor.

Demosthenes captured the hearts and minds of many with his warnings and imprecations, but he failed to be the statesman that was Eubulus. His only success was in the failure of Athens and Greece to hold back Philip, for he would become known as the one relentlessly exercised over Philip’s advances. Athens’ failure would be Eubulus’ failure, and the blame would work to embellish his story with tales of corruption and weakness.

Today, we have the Obama administration. Technocrats. Their countless economic advisors. The studied decision-making before committing to Afghanistan. The appeals to reason on and practical pursuit of healthcare reform. The Keynesian logic behind the economic stimulus package. Each decision and initiative was flanked by support from experts and thought leaders, together evoking the story of Eubulus. Nonetheless, one only has to watch the Sunday morning news shows to see Demosthenes’ agenda played out by the vocal remnant of the Republican consensus in the hopes that Obama might be forgotten, like Eubulus, regardless of the cost.

The Speculations of Mr. Spectator

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