The Economic Tyranny of the Interstate Commerce Clause

Tibor R. Machan

Here is an instructive comment from Supreme Court Justice Ruth Bader Ginsburg during the recent oral arguments presented about Obamacare:

“People who don’t participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can’t afford at the point where they need them, and the result is that everybody else’s premiums get raised? It’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.”

Ergo, we may infer from this, Congress is authorized to regulate--including coerce--commerce for us all in the United States of America.

First of all, when one applies this view to nearly anything people purchase, it would imply that everyone must act in concert with everyone else. If you don’t purchase something I do purchase, say an orange colored sweater which I want badly, or blood pressure medication, which I evidently need to stay alive (judging from what my doctor suggested when she prescribed it for me), my purchase will very likely cost me much more than it would if you purchased these items as well!

One central point of having a free and not a centrally planned market system is that different people are at liberty to make very different choices in it. If just a few people buy certain goods and services, this will, of course, drive the cost of these up (if one wishes to put it that way--”drive” suggests an impersonal process but that is misleading.) Elementary economics.

Justice Ginsburg does not appear to appreciate the point of having a free market, indeed, a free society. After all, suppose that The New York Times is losing consumers, just as other publications have been on and off over the decades. Now for the few who continue to want to purchase the paper it will be much more expensive to do so when this happens. Are we then supposed to tolerate a government that coerces us all to purchase copies of the paper? It is a vital product, as far as many people believe (and maybe they are right).

Still, they need to be persuaded instead of coerced! That is what freedom means, regardless of the economic consequences. If someone refuses to buy the kind of merchandise or service I choose to buy, it could well cost me much more to buy it but that is one of the inescapable consequences of liberty.

This is akin to how if when running a marathon race someone passes me, I will lose my position, indeed may lose the race altogether. Well, that’s how it goes with free competitions, in a marathon or in the market place. And it doesn’t matter that some runners really need to win very badly--indeed, when the Soviet Union sent competitors to international races, they did need to win very badly since their government was very displeased with anything else but a win.

Which calls to mind that famous quip by Justice Oliver Holmes Jr. (in his notorious, Lochner dissent) that the framers didn’t mean to include the economic philosophy of Herbert Spencer in the U. S. Constitution. But they in fact did, if not in those terms then in very similar ones--e.g., through the principle of private property rights.

Here, too, is where it becomes evident that most of the framers of the U. S. Constitution didn’t mean by “regulate” commerce what that term has been taken to mean by many justices and legal scholars since the New Deal, namely, “regiment.” They meant, most likely, “regularize” since the issue was to eliminate the irregular measures the governments of different colonies used so as to control commerce between them. But once the colonies became one country, this was no longer deemed sensible--the entire country became the market and trade within it needed to be rendered free, that is, regularized, conducted without disparate obstacles facing traders in different regions of the country.

Quite apart from the sophistries used by the Obama team and its champions on the U. S. Supreme Court, the debate about Obamacare should really be put in terms of a free market versus a government planned one. That would put all cards on the table, face up! It would demonstrate that we are indeed confronted by a very pivotal issues in our time, namely, whether the laws of our country will serve liberty or tyranny.