|By Arkes, Hadley|
Only the natural law, writes
Past the politics of Obamacare - the tawdry buying of votes, the spectacle of representatives in a republic passing into law bills of two thousand-plus pages they had never been able to read - past all of that, there was an understanding, shared by both sides, that this was not merely a controversial measure, but a scheme that would change the regime itself. Whether it promised or threatened a change in the American regime would hinge on whether that change in regime was regarded as a good or bad thing. But no one denied the reach of its significance.
For the left, it gave the promise of matching the enlightenment of
The political storm set off by Obamacare may not subside, one way or another, until the public determines next November whether it will preserve in office the president who was determined to push it through with a
The legal challenge has merged with the political challenge. For the most serious argument against Obamacare is that it threatens to change the American regime in a grave way: that it sweeps past the constitutional restraints intended to ensure a federal government "limited" in its ends, confined to certain "enumerated" powers, and respecting a domain of local responsibilities that it has no need or rationale for displacing.
And yet those limits have been so thoroughly exceeded over the years that they are now barely discernible. A federal government that can tear down and build housing in the cities, sponsor clinics on contraception, and impose unions on private companies, knows no distinct sense of boundaries. The formula for this expansion of the powers of the government has been settled now for nearly seventy-five years, since the New Deal. In creating Obamacare, the Democrats were simply drawing on a playbook long ago grown familiar.
The key to this expansion has been the Commerce Clause of the Constitution. Before 1937, that clause had offered a rough way of limiting the powers of
The problem for conservatives is that even the jurists they most admire, such as
Some of our most accomplished lawyers have sought to argue that Obamacare represents "a bridge too far" - that if the federal government can manage the access of individuals to their medical care, there is virtually no limit to what it can do, either in exercising every power now exercised by local governments or deeply invading the zone of personal freedom. But whether or not these lawyers notice it, they have come to argue within the same terms that judges have come to use and accept - and embed - in the law of the Commerce Clause. And as they do that, they may be deflecting themselves from the most powerful arguments against Obamacare, the arguments that run to the root of the law in "natural rights."
We now find some of our best jural minds trying to concentrate their outrage on the moral problem at the center of this political takeover of medical care, and they reach the thunderous conclusion that with Obamacare we are - gasp - going to be compelled to buy something. Buy a product, buy a service, we have no interest in buying. The service is that of medical insurance offered by private companies.
The rationale of the act is to make sure that the medical care of every person is funded, and to cover the wave of costs that come about when hospitals are compelled to take in every person who shows up in an emergency room and insurance companies are barred from refusing to insure people who come with "preexisting conditions." The poor and the sick are mainly exempted from expense, and so the costs will be covered by compelling the purchase of a privately sold product by healthy, often young, people who have been unwilling to purchase the insurance. The scheme of legal compulsion is justified by the claim that it will serve, in the aggregate, the health of the public.
The counter-argument has been that many other products may plausibly serve the public health, and so people could be compelled, perhaps, to purchase broccoli or electric cars. These arguments have been made widely, but they have rarely been brought together as powerfully as they were by Judges
Even in the face of a Great Depression, a
For all we know, that argument may work. It may persuade five justices on the
The legal scholar
The implications of that shift in 1937 were drawn out with a jarring simplicity and directness by Justice
One of the cases involved a men's clothing factory in
Once that kind of proposition was in place it was simply a matter of delicacy to hold back from making starkly explicit the implications. McReynolds, a cantankerous, nasty man, was never supplied with delicacy, and he suffered no inhibitions on drawing out those implications at the time:
May a mill owner be prohibited from closing his factory or discontinuing his business because so to do would stop the flow of products to and from his plant in interstate commerce? May employees in a factory be restrained from quitting work in a body because this will close the factory and thereby stop the flow of commerce? May arson of a factory be made a Federal offense whenever this would interfere with such flow? If the business cannot continue with the existing wage scale, may
Of course the other, common-sense implication was: Why not simply ban the strike itself, if that is what would cause the flow of commerce to stop? McReynolds himself was so aghast at the notion that the government could command a reduction in the salaries of the employees or actually bar them from quitting work that he thought simply drawing out those shocking implications would be enough to make his point. McReynolds' reductio ad absurdum is based on the deepest axioms of personal freedom, axioms that run back to the work of those judges who came out of the anti-slavery movement.
The most telling argument came in 1908 when the threads were brought together by Justice
Workers surely had to be free to form an association with other workers in the same workplace; that right was simply implicit in their standing as free men. And surely they were free to decide that they would not work in any establishment that did not do its hiring solely from the membership of their union. But to say that the workers had the power to deny work to a person not a member of their union, or deny to an employer his own freedom of association, was to back into contradiction. As Harlan explained, the employer's right to his own freedom of association entailed a right to quit his association with any workers who were governed by that kind of code, who would claim the power to deny work to other men and deny to the owner his own right to association for a legitimate end.
The argument was heard, of course, that the supposed liberty here and equality of right were denied by the striking asymmetry of bargaining power between the employer and workers who needed jobs. That enduring question was given its enduring answer by
It seems to me that Harlan's argument, returning to the axioms of personal liberty, was the most critical ground for the resistance to that expansion of the Commerce Clause in 1937. But axioms of freedom were rather dismissed by the lawyers for the government, and when they were pushed aside, they faded from prominence in our recollection of the key cases here. What lingered was the box score, and what faded from the furnishings of mind of our lawyers was that concern for the axioms of freedom.
The lesson for our own day is that our lawyers are getting fixated on certain portions of the argument of the Commerce Clause that might just convince the courts, but they may be missing the arguments that really go to the root of the problem with Obamacare. And because they do go to the root - because they do touch the matter of natural right - those arguments may be far more readily understood by the public than arguments that depend on tutoring people on Wickard v. Filburn and the chains of argument that have been contrived under the Commerce Clause.
How might that case be made then again as a matter of natural right in regard to Obamacare? Not by insisting that we have a natural right not be coerced into buying things we have no wish to buy, but by pointing out that this scheme of national medical care is virtually bound to produce a scheme of rationing, as it has produced that rationing in
I believe that it does. We now have in place the scheme for commissions of unelected people, wielding vast discretionary power, set to be loosed entirely from tethers of restraint in 2019, and likely to ration health care as it is now rationed in
Under Obamacare, medical care will not be denied by an insurance company, under arrangements people had chosen and accepted themselves. If experience offers any guide, there may be more layers of appeal, review, and reversal in the procedures of insurance companies than in a system of command and control run by the central government.
The crucial point, then, is that treatment would be denied by a government that may have the monopoly power to grant or withhold medical care that seems to any person quite necessary to preserve his life. The government, in other words, would deny the right of a person to seek the preservation of his life through means that are thoroughly legitimate, involving no threat to the lives of others and no moral injury sustained to himself.
We have had an interesting, precise test case of the strength of the right to preserve one's own life through legitimate means just five years ago in
For a drug to have gone through Phase I is taken to mean that it is safe enough that a researcher is warranted in testing the drugs on a larger number of people. As Judge
That decision was overturned by a panel of three judges from the
Rogers and Ginsburg took the second path, which they thought was the more conservative and restrictive approach, but in their defensiveness they put in place the ground of their later overruling. They had not claimed that the principle can be grasped per se nota, as true in itself, much as we grasp that familiar first principle that we may not hold people blameworthy or responsible for acts they were powerless to affect. They claimed the authority to pronounce the principle, not because it was an axiom that instantly commanded our reason, but because
It seemed to come as a surprise to them when they were overruled by a fuller appellate court containing some of the most reliable figures in conservative jurisprudence, such as
But the litigants were insisting on a deep axiom involving their freedom to preserve their lives with all rightful means, a right that runs deeper than the claims of any regulatory apparatus. That is where the sharp claim is made, invoking natural rights, and that is where the argument encounters its serious resistance, even on the part of judges who have been tagged accurately as "conservative judges."
There has been no want of examples of conservative judges finding it necessary to move beyond the text of the Constitution in explaining what they think various provisions in the Constitution really mean (as in the right of the people "to keep and bear arms"). But the melancholy point is that the conservative judges have struck for so long now the posture of skepticism over moral reasoning outside the text that they seem to have come full circle in converging with their liberal opposites: They too profess now the most serious doubt that there are real moral truths that reason can discern, truths that can be recognized as true even across the divide that separates liberals and conservatives.
That lingering doubt about the truth of moral reasoning may mark the condition of the conservative judges in our own day. But it may also be the screen that now works to filter out for them the deepest axioms of the law, and the most powerful arguments that may be brought to bear against the statism and controls of Obamacare.
One redeeming path of rescue for the conservatives may have been found, quite without planning, in the recent briefs against Obamacare. The judges in the Eleventh Circuit had the chance to draw on the persuasive brief written by
Katsas then invokes Justice
But then, after arguing in this way that the laws imposing Obamacare are deeply wrong, he concludes that they must be beyond the constitutional limit of a government of "enumerated powers." The right not to have those kinds of laws imposed must be one of those rights that the Tenth Amendment protects, when it reserves certain rights to the states and the people. It is worth noting - and savoring - the path he has taken: Katsas appeals to the deep principles beyond the text for the sake of identifying the "wrong" in the case - and the "correlative" right not to suffer that wrong. Once he had that right in hand, he could then place it among the rights that a government of constitutional restraints had meant to foreclose.
For the judges, and for conservative lawyers looking on, he was playing the game correctly: He finally seemed to find a location in the text of the Constitution for the right he was invoking. But what a detached philosopher would have to point out here is that it wasn't the Tenth Amendment, or anything else in the text, that was doing the heavy lifting. The Constitution was brought in only after the natural law had been engaged to explain, as only the natural law could, the deep wrongs and rights of the matter.
|Copyright:||(c) 2011 Institute of Religion and Public Life|
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