The Constitution, 'Constitutional Law,' and ObamaCare
The hottest topic in America right now -- as I write this, the Supreme Court is about to begin hearing three days of oral arguments -- is the constitutionality of several aspects of the legislation called the Patient Protection and Affordable Care Act, better-known as "ObamaCare." Much of what has been written about this case is predicated upon the idea that it is "settled law" that Congress has "broad powers" to regulate interstate commerce. Supporters of ObamaCare jump from that premise to the conclusion that the Court must uphold the law, while opponents argue that although Congress has that "broad power," ObamaCare goes too far and exceeds the authority granted to Congress.
What must be challenged is the premise that the Constitution actually does grant Congress "broad power" over interstate commerce. The fact is that the language of the Constitution itself does not confer such power. Anyone who reads the document in search of a clear statement -- and the drafters were nothing if not clear, careful writers -- that Congress or the executive branch is supposed to have any power at all to dictate to individuals and businesses how they must act when engaged in "interstate commerce" searches in vain.
Instead, the supposedly broad powers to dictate to Americans how they must act, even to the point of demanding that they purchase particular products, is entirely an artifact of constitutional law. That is to say, in a number of its rulings about the meaning of the Constitution, the Supreme Court has said that the federal government has those "broad powers." It is easy to show that those rulings were erroneous, creating a wide divergence between the Constitution's plan for a republic with a separation of powers between the federal government and the states, with strict limits on the latter.
At the heart of the current dispute is "the Commerce Clause." Included in Article I, Section 8 under the powers specifically given to Congress, we find this language: "To regulate Commerce with Foreign nations, and among the several States..." Why was that inserted? James Madison later explained that "the Commerce Clause grew out of the abuse of power by the importing states in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the states, rather than as a power to be used for the positive purposes of the general government."
Thus, the purpose of that clause was to remedy a problem that had arisen in the new nation -- namely, that some states were impeding the flow of commerce with laws favoring producers within their borders. To keep commerce "regular" meant that Congress could enact laws to prevent that abuse of power by the states. It was never meant, as Madison wrote, as a grant of power for whatever future Congresses might want to do to control everything relating to people's commercial affairs.
For a long time, that was how the Supreme Court understood the Commerce Clause. As late as 1935, the Court refused to accede to the "progressive" notion that the clause meant that Congress could intervene in business operations. In Schechter Poultry, the Court declared unconstitutional the National Industrial Recovery Act on the grounds that Congress had no authority to dictate to businesses how they must operate, nor to delegate such decisions to unelected bureaucracies.
Late in 1936, however, President Roosevelt, angered at a Court that had struck down many of his statist plans for controlling the nation's economy, issued his infamous threat to pack the Supreme Court. That plan met with a great deal of opposition within his own party, but it apparently worked on two members of the Court: Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. When it came to deciding the test case involving FDR's extraordinarily authoritarian National Labor Relations Act in 1937, they switched from supporting the old, correct understanding of the Commerce Clause to supporting the "progressive interpretation" that the clause gave Congress power to enact any law that would somehow "affect" interstate commerce. The funny thing about that decision, Jones & Laughlin Steel, is that the majority never bothered to mention the Court's previous Commerce Clause decisions. It was as if Schechter disappeared into a black hole.
The Court continued along that same line, allowing Congress to do whatever it wanted by calling it "regulation of interstate commerce" until reaching the utterly absurd case Wickard v. Filburn in 1942. Under the Agricultural Adjustment Act, a farmer in Ohio was fined for having grown more wheat than federal regulators permitted him to. He argued that the law was unconstitutional (at least as applied to him) because all of the wheat had been consumed on his own property. None had been sold at all, so there was no commerce, much less "interstate commerce." But, eager to uphold the "progressive" ideal of unlimited federal control over every aspect of the economy, the Court fashioned a remarkable justification. Since the farmer might have purchased some wheat in interstate commerce if he had not illegally grown his own, his conduct therefore could have "affected" the interstate market for wheat, and therefore his action was subject to federal punishment.
Notice that nowhere in the Constitution is there any express power to control agricultural prices. The justices merely assumed that Congress was supposed to have such authority, then leaped from there to the constitutionality of punishing an individual for having used his own labor and property in a peaceful manner.
It was precisely that kind of high-handed disrespect for individual liberty that catalyzed the American Revolution, but according to the Supreme Court, penalizing farmers for growing more of a crop than some federal bureaucrats decided they were permitted to was perfectly in keeping with the Constitution. Within just five years, the United States had gone from strict limits on the power of the federal government to virtually no limits (a point made in the dissent to Jones & Laughlin) -- not because the Constitution had changed, but because "constitutional law" had changed. It was just as if the Supreme Court had amended the Constitution to radically alter its meaning.
The backstory to this history is that American "progressives" had long yearned to dump America's tradition of individual liberty and limited government in favor of extensive, "scientific" control by the elite -- i.e., people like themselves who would take into consideration "the public good." Inspired by utopian visions of a far more rational and equal society, such as in Edward Bellamy's novel Looking Backward, the progressives wanted a centrally planned nation in which obedience to authority would be the rule and freedom the exception. The trouble was that the Constitution was written to put strict limits on government power, especially when it comes to the federal government.
Rather than taking dead aim at federalism and the limits on government power, which most Americans favored, the progressives went about subverting the Constitution by getting their allies appointed to the bench, especially on the Supreme Court. Those were the jurists who thought that the Constitution means whatever a majority of the Court says it means, and they rarely missed an opportunity to decide a case in a way that expanded the scope and power of the federal government. Much of what we call "constitutional law" today is the accumulation of decisions that departed farther and farther from the language of the Constitution in favor of the progressive theory that increased government control over almost every aspect of society is good.
The alleged constitutionality of ObamaCare is based upon a series of missteps that began with Jones & Laughlin Steel. If ObamaCare is held to be constitutional, it will serve as another step toward...what? It is impossible to know where the "progressives" will push their agenda of increasing federal domination after they take over the market for medical care, but there can be no doubt that once it becomes "settled law" that the vast increase in coercion under ObamaCare is constitutionally valid, we will see other offensives that go still farther.
George Leef is director of research, John W Pope Center for Higher Education Policy and author of Free Choice for Workers: A History of the Right to Work Movement.