The Long View

Liberty's Enemies

David Boaz over at Reason recently made the point that there is no such thing as a golden age of lost liberty from which the development of modernity is a sustained decline:

For many libertarians, "the road to serfdom" is not just the title of a great book but also the window through which they see the world. We're losing our freedom, year after year, they think….The Cato Institute's boilerplate description of itself used to include the line, "Since [the American] revolution, civil and economic liberties have been eroded." Until Clarence Thomas, then chairman of the Equal Employment Opportunity Commission, gave a speech at Cato and pointed out to us that it didn't seem quite that way to black people. And he was right. American public policy has changed in many ways since the American Revolution, sometimes in a libertarian direction, sometimes not.

Actually, even if economic liberty is what chiefly interests you, 18th-century America is not necessarily where you should look. The states in the early days were keen on granting monopolies and toll franchises, if only to raise money. Aside from chattel slavery, labor indentures were widely used into the 19th century. (The argument that indentures were a voluntary exercise of liberty is the sort of argument that gives liberty a bad name.) Even in the post-slavery 19th century, federal revenues were raised largely from protective tariffs and other duties. We sometimes forget that the 16th Amendment, making it clear that the federal government had the authority to lay personal income taxes, was intended in part as a measure to promote free enterprise.

As for plain-vanilla civil liberties, freedom of speech as we know it in the 21st century scarcely existed in the early republic. Under the old law of libel, there was an amazing amount you could not say, even about public figures. The state and federal government could and did forbid the expression of opinion for various reasons; constitutional guarantees of freedom of the press were thought to forbid only the blocking of publication, not punishment afterward.

There was a period, the Great Lifetime from the American Civil War to the end of World War II, when the whole West adopted measures of command economics to manage the emergencies of those decades. Those measures could at times threaten liberty as the Founders understood it. However, it is anachronistic to read the controversies of the first half of the 20th century back onto the Founding; the Founders thought liberty in their day was threatened, too, but not by the sort of things that worried people in 1915 or 1935.

In every age liberty faces a new set of threats. The determination of conservatives today to insist that there are no threats but those of 80 years ago suggests that they are conserving the wrong things.

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Readers in immediate need of an argument for why Obamacare is unconstitutional might consider David Kopel's claim that destroying the structure of the constitution is unconstitutional.

The writer defines constitutionality narrowly:

“Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?”

This is different from asking whether a certain interpretation could be constitutional. The articulation of aspirational goals for the development of the law is fine, since “[o]ften, these aspirational statements do become constitutional law, especially when they win the hearts and minds of the public.” But that is not what he is trying to do here.

Some parts of Obamacare, such as the calorie labeling requirement for restaurant chains, appear to be solidly within the scope of existing precedents. (At least based on the discussion I've heard thus far.) In contrast, the individual mandate to purchase health insurance is not... It "is unprecedented in our jurisprudence." Romer v. Evans (1996) [though it is] possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate.

Note that there is a distinction between “unprecedented” and “contrary to precedent.” Even under the narrowest definition of “constitutional,” it is hard to argue that answering a question in a case of first impression is “unconstitutional” because it changes constitutional law. In any event:

No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product.

But do such mechanisms exist under other powers granted to the federal government by the Constitution?

The federal militia powers come from the state militia powers, which (by enacting the Constitution) the People and the States chose to give (at least concurrently) to Congress. No one could possibly dispute that state militia powers included the power to require militiamen to bring certain types of arms to duty, and thus to require the purchase of such arms if necessary. The federal power to regulate commerce among the several states was likewise granted to Congress from the powers which were then possessed by the States and by the People. There was certainly no understanding in 1789 that state power to regulate interstate commerce (e.g., by inspecting goods at ports of entry) included the power to compel individuals to purchase goods in commerce.

Actually, according to the Supreme Court in McCulloch v. Maryland (1819), and indeed according to the plain text of the Constitution's Preamble (“We the People of the United States…), the militia powers, like all the powers invested in the federal government, come not from the states but from the people. The point is important for several reasons, the greatest of which is that it means state secession is unconstitutional. (We should note that James Madison emphasizes in Federal Paper 39 that the people of each state independently ratify the constitution; the ratification is not by national majority.) In the context of the writer's argument, it at least suggests that state practice at the time of the Constitution's ratification need not be the measure of the powers granted to the federal government, since the power came fresh and inchoate from the people.

One could argue, and maybe this is the writer's real thesis, that the practices of the states expressed what the people thought they were granting to the federal government at the time of ratification, and that the people intended to grant no more. This is a coherent position, but it's still a head-scratcher. Note that the argument has shifted from what powers were granted to the federal government; the writer does not here contest that the Commerce Clause power may authorize a national health-care system. We are talking here about the mechanisms that would be used to implement it.

Ground zero for that issue is the case we saw above, McCulloch v. Maryland. Readers will recall that the issue there was whether the State of Maryland could tax the Second Bank of the United States, which had been created by federal charter. The case is chiefly cited for the proposition that federal law trumps state law, but before the court got to that issue, it first had to deal with the fact that the Constitution does not expressly give the federal government the power to charter corporations.

It was pretty clear that the Bank of the United States, as a central bank, was carrying out functions intended for the federal government under the Commerce Clause. Given that premise, the court asked:

Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry how far such means may be employed.

The court observed that the text of the Constitution does not expressly give Congress the authority to create a corporation. The Court was impressed, however, by the fact that the Articles of Confederation did say that any powers held by the federal government must be expressly granted, at least in so far as those powers could preempt the powers of the states. That document says:

Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

The Supreme Court said that language is what the Philadelphia Constitution, including the 10th Amendment, is not. Indeed, that language was one of the glitches in the national government that the Philadelphia Constitution was intended to fix.

Getting back to David Kopel's article, he concludes with the assertion that the Supreme Court could do away with Obamacare by not changing the law:

[T]he Court need not overrule a single precedent, nor need the Court cast into doubt any of the creations of the New Deal or the Great Society. Instead, the Court may simply choose not to invent unprecedented extensions of the interstate commerce power and the tax power.

In reality, there are few more radical breaks with history the Court could make than to declare that the federal government was limited to the using the administrative mechanisms of 1788. To declare that would be to change the law, since a hitherto unanswered question would answered; that, by his own definition, would be unconstitutional.

* * *

But if Obamacare is not a rough beast slouching toward Bethlehem, then are we to have no sickening dreads? Canadians, at least, will have no dearth of walking nightmares. Or so says Mark Steyn, who surmises from the fact that Ann Coulter was lately harried from Canada by a university mob that True North strong not free (Actually, I'm surprised that Canada's language laws did not also require him to declare that the country was no longer “terre de nos aïeux”):

Canadian “feminist” Susan Cole appearing on U.S. TV to support the protesters' shutdown of Miss Coulter's Ottawa speech:

"We don't have a First Amendment, we don't have a religion of free speech," she explained patiently. "Students sign off on all kinds of agreements as to how they'll behave on campus, in order to respect diversity, equity, all of the values that Canadians really care about. Those are the things that drive our political culture. Not freedoms, not rugged individualism, not free speech. It's different, and for us, it works."

Does it? You rarely hear it put quite that bluntly

[N]othing says "restraint" and "respect" and "civilit" more than a snarling mob using the threat of violence to shut down those it dislikes…

This is all very regrettable, but I mention it here chiefly because of this remark about the change of generations:

[M]ost of the diversity-peddling faculty are old enough to have some residual acquaintanceship with the inheritance they affect to revile. Whatever bollocks they spout in class, they have no wish to live anywhere other than an advanced Western society: for one thing, it's the only place you can make a living selling fatuous pap about diversity; in that and many other ways, multiculturalism is a unicultural phenomenon. In some deep unacknowledged sense, they understand they're engaged in a pantomime.

But their students are another matter. If you're born circa 1990, you have been raised entirely in a [University of Ottawa Provost] François Houle world: this is all you know; it's the air that you breathe. It's like the difference between the first generation of rock 'n' rollers and those nineties gangsta rappers. Elvis sang, "If you're looking for trouble, you've come to the right place / If you're looking for trouble, look right in my face." But when you did, as the novelist Tony Parsons noted, you couldn't help noticing he was wearing a little too much mascara. Whereas when you looked into Snoop Dogg's or the Notorious B.I.G.'s face, you really were looking for trouble. Asinine ham-fisted clods like Houle are play revolutionaries; I'm not so sure about his young charges.

Still, we may anticipate that the enthusiasms of the terrible old sinners in the university lounge will come to naught. When a revolution succeeds, the one sure result is that the generation it creates will be different from the generation of its creators. Think of the dreamy adolescent Hitler, with his sketchbooks and keen interest in opera; the Hitler Youth would have made short work of him at Strength Through Joy camp.

And when is someone going to do a full-length novel about the overthrow of Big Brother in Oceania?