Tuesday, February 08, 2011

Big Guns for Statism

Tibor R. Machan

Since some federal judges have ruled against the constitutionality of Obamacare, there has been a bit of panic in the ranks of defenders of American statism. Thus, for example, Harvard Law School's Lawrence Tribe has chimed in, on the pages of The New York Times, with the predictable observation that "Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?" Well, yes, those of us who champion individual rights as against collectivism do!

David Cole made his pitch in The New York Review of Books, claiming that these rulings were far too libertarian and thus not really consistent with the way the U. S. Constitution has been read of late. As he wrote, "The objections to health care reform are ultimately founded not on a genuine concern about preserving state prerogative, but on a libertarian opposition to compelling individuals to act for the collective good, no matter who imposes the obligation." Indeed, and that’s all to the good! Who on earth wants to defend state prerogative other than some crypto-monarchists!

Both apologists for statism are correct, of course, but they are also beside the point. Just because justices have been appointed who have favored expansive powers for the federal government--and, indeed, for governments as such--doesn't prove anything about whether that is how they ought to rule on, for instance, Obamacare's constitutionality.

In earlier years the courts have interpreted the constitution as limiting the power of governments, including the power to regulate--let's call it what it is, namely, to regiment--interstate commerce. They used to view Article I, Section 8, the interstate commerce clause, as authorizing Congress to regularize commerce, not to regulate it--that is to say, to establish uniform free market conditions for doing business within the borders of the country and across state lines. Prior to the formation of the union the states often behaved in highly protectionist ways but once united into one country this became a serious restriction on the exercise of individual property rights and an impediment to the free flow of commerce. Ergo, it had to be stopped, given the broad principles of community life laid out in the Declaration of Independence and the Bill of Rights. It was a revolution, after all, not a minor putsch.

In later times, under the reactionary influence of the populists and other statists, the courts started to reintroduce the principles of government that had been in practice for many centuries, principles that rationalized the power of government over the citizenry in contrast to what the revolution aimed at, namely, the demotion of the state, placing sovereignty in the hands of citizens rather than governments. Of course it didn't happen all at once, nor completely, radically, but more like changing the course of an aircraft carrier, gradually. The aim was revolutionary but the process was slow just as with the abolition of slavery.

Clearly some elements of the legal order of the new country needed major overhaul, such as the permission for the states to support slavery, a permission that contradicted the ideals of the revolution. To the extent that this required some temporary broad powers on the part of the federal government, it amounted to nothing more than carrying out the implementation of the ideals of the founding. State rights, while a good federalist idea in certain respects, also had the unfortunate side effect of standing in the way of a nationwide renunciation of slavery.

Because in this instance federal power was used for purposes of of expanding human liberty, those who champion statism jumped at the chance to argue that statism itself was consistent with the basic principles of the founders. Its like arguing that because it is permissible to deploy force against others in self-defense, it is perfectly OK to deploy it aggressively, too.

No doubt, some founders felt that way, such as maybe Alexander Hamilton. They were not all of one mind. But it is sheer sophistry to argue, as Tribe and Cole do, that the needed adjustments on America's legal system were meant to reintroduce into the country broad powers for the federal government under the distorted, albeit prominent, reading of the interstate commerce clause.

Nonetheless, these eager statists are continuing what has amounted to a counterrevolutionary legal trend, one that reestablishes the government--the king, Congress, the state--as the sovereign in the country, making the citizenry once again subjects, people who could be ordered by other people to purchase health insurance on the grounds that the public interest demands this. No wonder people ask if forcing us to exercise or to eat broccoli will come next, as per the enlightened polices of the Third Reich.

Such is the nature of statism, sacrificing the rights of individuals for some alleged public good, one that reduces, in the end, to the private agendas of the statists and has nothing to do with the public at large.

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