Two weeks ago, I was reading on a professional list serv hosted through the state bar association about a new case that applied Washington’s Consumer Protection Act in a manner in which it had not been applied before, that would be useful to elder law practitioners state-wide. About a day later, one of the older attorneys on the list serv (I’m in my 40s) posted a comment about our shameful treatment of the “greatest generation”, and how awful it is that they have to become paupers before the can make the rest of us pay for their nursing home/end-of-life care, and how they can’t leave their wealth to their kids and grandkids like we promised them in our “contract” with them, and carrying on about the immorality of it, and how awful it was that we were now contemplating cuts to the Medicare and Medicaid programs put in place in the sixties.
I was gobsmacked. Here was an officer of the court, someone who is supposed to understand the law, and to think logically, proposing that it was immoral to expect people to pay for their own care if they had the means to do so, and suggesting that they had every right to pass their accumulated wealth on to their kids and grandkids, and make the peers of those kids and grandkids pay for their care. As one of the people stuck with the bill according to this plan, and as someone with children whose own expectations are considerably diminished by this kind of thinking, I was angry. As a practitioner, who can clearly see that the logic of this doesn’t work anyway, because those kids and grandkids will still be paying for the care of grandpa and grandma’s peers, I was livid. I had to ask about the morality of presuming that this was owed to anyone, and how the mortgaging of future generations was in anyway a moral way to pay for it. I then went on to ask how it was that the federal government had the lawful authority to engage in such largesse to begin with.
To my relief, there were a few responses that were supportive of this view. There were a few older members who, to their discredit, avoided the question of legal authority, and instead, somewhat condescendingly, waxed poetic about the views they held when they were “the masters of the world” back in the sixties, when they tried to change the world for the better. I have been guilty in the past of joking about aging hippies behaving badly when discussing certain people in politics, but I had never seen generational hubris so baldly manifested.
Finally, a lawyer took up my question of the legal authority for the federal government’s largesse in this matter. She assured me that it was found in the general welfare clause…of the preamble of the Constitution (and not in Article I, Section 8!). I pointed out to her that it was her own unique translation, but Madison, who was one of the principal architects had a very different take which he articulated in the Federalist 41, in part in answer to the Anti-Federalist Brutus, in his paper, VI, in which he warned that its inclusion would lead to men of lesser character in succeeding generations deciding that anything and everything was “general welfare”, to the detriment of society as a whole.
Her response back to me asked “So what do we do in the alternative?”
At this point, I decided to learn more about her. Among other things, she had been an aide to Senator George Mitchell for a very long time, and had written legislation here in Washington as well. No doubt, she had been firmly indoctrinated to the idea that there is nothing that the federal government could not and should not do. Therefore, while I could say “Gee, I dunno. How about a return to limited government, in which we get its boot off our necks and its hand out of our back pockets?”, I felt reasonably certain that given her belief in the “Good and Plenty Clause” interpretation of the Constitution, it would have simply registered like a whale popping up in front of her, speaking in Russian and Mandarin. Instead, between the utter disappointment I felt at such a manifest failure to understand our organic law in too many of my fellow lawyers, and the size of my workload, I simply chose to not respond at all, and I simply quit keeping track of the thread.
The head of that state bar section finally commented late this week about the “political” discussion that arose in that thread, and how she had been informed by the state bar that membership in that list serv fell off sharply due to the number of comments and the nature of the opinions discussed, and she asked that the thread be declared “over”, and that such “political” discussions be avoided in the future.
For my part, I didn’t see any reason to continue. I saw a lot of supposedly intelligent people who are focused on treating symptoms, and who couldn’t be bothered with the idea of actually treating the disease, largely because they refuse to comprehend that there are limits to the compassion that they can engage in with other people’s money. I’m afraid that we are sailing this ship of state right over the rocks and the falls beyond them, and that too many aboard are in denial about the whitewater ahead.