Is Health Care Reform Constitutional?

Tibor R. Machan

On this occasion I wish to address some of Dean Erwin Chemerinsky's points made in an article he wrote for the December 2009 edition of Saturday Night magazine, in a guest column title "The Constitution and Health Care Reform," one that defends the constitutionality of health care "reforms" currently under way.

Before I begin I wish to enter a protest about calling the health care policies being advocated by President Obama and the Democratic leadership in Congress reforms. In my view they are not any kind of reforms, bits of adjustment here and there, of the approach Americans take to to securing health care and health insurance for themselves. It is rather a major, even revolutionary, change because while in the past some of health care (Medicare and local county hospital policies) has had government involvement, this time the objective is to establish what is called "a public option," meaning a form of health care that is provided by the federal government, just as, say, the Interstate Highway system is provided by the federal government.

But what about Dean Erwin Chemerinsky's major points in this piece? First, though, it should be noted that while the dean comes with impeccable credentials, this should not mislead readers to think that equally well credentialed American constitutional law professors do not disagree with him. For example, the University of Chicago Law School's Professor Richard Epstein takes a diametrically opposed view on the topic. He has published articles and books critical of government regulations of all parts of American society and makes a powerful case that such regulations are indeed unconstitutional. He has even defended the highly controversial idea that anti-discrimination laws violate individual rights (to, for example, freedom of association).

Second, Dean Chemerisnky's argument assumes that the interstate commerce clause authorized the federal congress to regulate--that is to say, aggressively interfere with--commerce (among the several states). Yet, arguably what that clause did is to authorize Congress to regularize such commerce, meaning, to abolish tariffs and duties that had been imposed by the colonies prior to the creation of the union. What Congress was authorized to do, then, is to establish a free market in the United States of America not to obstruct it. Not that this is a popular view among constitutional scholars but we aren't discussing what is popular or not but what makes the best sense, objectively, including in the light of American political and legal history. After all, for a long time the constitutional treatment of African Americans followed precedents that eventually were overturned because they were deemed to be grossly unjust. Well, the kind of welfare statism advocated by Dean Chemerinsky may well be similarly unjust, given how aggressively it promotes violating the private property rights of American citizens. I am not complaining of the dean's embrace of such views, though I object to them, but I protest his assertion that welfare statism is sanctioned by the U. S. Constitution and the political philosophy of the American Founders.

Third, contrary to what the dean implies, the Ninth Amendment to the U. S. Constitution makes clear that there are unenumerated rights--ones not listed in that document--which citizens also have. Recent rulings concerning the use of contraception and engaging in sodomy have relied on this reading. And that is, of course, as it must be in light of the political tradition that underlies the Constitution, one in which one's rights, basic and derivative, are pre-legal, with the law resting on them not the other way around. Since we have many rights by virtue of our human nature, the Ninth Amendment makes eminently good sense.

Fourth, and more generally, in a free country citizens may never be placed into involuntary servitude to their fellows as this health care reform movement intends to do. It makes no difference about the precedence--again, many precedents do not deserve to be followed and those that support a confiscatory, intrusive welfare state could well be among them.