Op-Ed

Ever since 1937, the year the Supreme Court stopped nullifying elements of FDR’s New Deal, progressive commentators have assured Americans that constitutional limitations on the power of the national government to regulate commerce are either infinitely flexible or altogether outmoded.

Conservatives and libertarians often objected that such a view was inconsistent with the intentions and structures of the Constitution.­ But, faced with large-scale economic and social problems that individual states either couldn’t or wouldn’t address, many Americans were persuaded that an expansive view of national power was both useful and necessary.

Recently, however, widespread opposition to healthcare reform has signaled a turning point.­ For the first time in eighty years, people have begun to sense the loss of control over their own lives that national regulatory schemes entail.­ At the same time, popular opposition to the health reform law ”” already at majority levels and still rising ”” gives the Supreme Court the political cover it sometimes needs to uphold principles of law against arguments of political practicality and moral “obligation.”

The most important argument against the law pertains to the “individual mandate,” which would require nearly all U.S. citizens to purchase health insurance policies approved by the national government.­ Failure to comply would trigger a penalty, rising over time, and collected by the IRS.­ The mandate is said to be “essential” to the government’s regulatory scheme which aims both to expand coverage and lower costs by enlarging the pool of the insured to include younger and healthier individuals.

There is no dispute that health care and health insurance are involved in interstate commerce and that both can be regulated by Congress using its Article I, section 8 power to regulate commerce among the states.

But as broad as this power seems to be, it is not a blank check.­ In both U.S. v. Lopez (1995) and U.S. v. Morrison (2000), the Supreme Court rejected Congress’s arguments that the economic dimensions of gun possession near schools and violent crimes against women were sufficient to authorize national regulatory schemes.

The reasoning in both cases was that to accept the government’s argument would be to erase any distinction between state and national power and to overturn the very logic of Article I’s enumeration of powers.­ The whole point of enumeration was to announce that Congress could not legislate on matters not listed.­ Why bother to enumerate powers at all, if the Commerce Clause covered everything and the mere fact that some everyday activity had an economic dimension was sufficient to justify national regulation?

Americans have grown accustomed to governmental interventions that might have seemed unwarranted and oppressive to the authors of the Constitution, but one of the great virtues of republican government is that it enables a people to take stock of its condition, compare its present with its past and, if it finds itself rapidly approaching the edge of a cliff, deliberately change course.

In support of the health care reform legislation, the government has argued that anyone who fails to purchase health insurance is not refusing to enter the market for that product, but merely delaying an entry that’s inevitable in the long run.­ Setting aside its flawed logic, the government’s claim of authority to regulate a decision whether to enter a market is without judicial precedent.­ There is simply no case law to support an interpretation of the Commerce Clause that would authorize Congress to require Americans to purchase a product.

If the Court upholds the government’s claim, the only remaining limitations on national power are those few specified in the text of the Constitution and the first ten amendments.­ This outcome would eventually destroy the Constitution’s federalist framework and, as regulatory mandates multiplied, make state governments indistinguishable from one another and incapable of resisting bureaucratic centralization.

Now, some may not be troubled by the prospect of thoroughly centralized power, but perhaps they should reconsider.­ The argument for a nearly unlimited national regulatory power rests on a dangerously unbalanced view of the Constitution, which holds that certain individual rights in the areas of speech, religion, privacy and sexual mores are deserving of the most rigorous protection, while others in the areas of property and commercial interaction can be freely infringed on almost any claim of higher social utility.

Yet historical experience and theoretical insight both suggest that economic and moral liberties are essential to one another.­ Dynamic and prosperous economies require participants accustomed to asserting themselves and defending their differences from others.­ At the same time, if individuals are to stand up for themselves and defend the moral choices that shape their characters, they need the incentives and optimistic outlook that only free or mostly free economies can supply.

Somewhere along the road to the present administrative state, many Americans lost track of the connection between economic and political liberty, but recent developments, including the rise of the Tea Party, the lopsided results of the 2010 midterms and the growing evidence of miscalculation and misdirection in the health care reform measures, may presage a change in outlook.

“If men were angels,” James Madison famously observed, “no government would be necessary.”­ The corollary is that government itself must be controlled.­ The first step towards restoring reasonable control would be to acknowledge that popular opposition to the adoption of massive new “social responsibilities” is not a speed bump on the road to a progressive utopia, but a welcome sign of life in a people not yet ready to have its destiny defined by policy “experts.”

Nothing in the Constitution would have prevented Congress from establishing universal public healthcare and raising taxes to pay for it.­ But such a direct approach was considered politically impossible, so the very party that won power by attacking “evil” insurers ended by bargaining with them:­ “Adopt our costly reforms,” they offered, “and we’ll offset the costs by forcing Americans to purchase your product.”­ It seems never to have occurred to anyone that the Constitution might prohibit that devil’s bargain or that the people from whom the Constitution derives its authority might object.

Yishaiya Abosch is a political science professor at Fresno State.