Past the politics of Obamacare—the tawdry buying of votes, the spectacle of representatives in a republic passing into law bills of two thousand-plus pages they had never been able to read—past all of that, there was an understanding, shared by both sides, that this was not merely a controversial measure, but a scheme that would change the regime itself. Whether it promised or threatened a change in the American regime would hinge on whether that change in regime was regarded as a good or bad thing. But no one denied the reach of its significance.
For the left, it gave the promise of matching the enlightenment of Europe and carrying the attack on inequality into its further reaches. For the right, it threatened the vast enlargement of the reach and powers of the state, bringing a sixth of the economy under the control of the government and reaching matters of life and death in a momentous new way. What was in prospect now was a scheme for the rationing of health care under the monopoly powers of the government. The generous provision of care to the poor would come along with controls that could deny to ordinary people the medical care they would regard as necessary to the preservation of their own lives, perhaps even when they were willing to pay for that care themselves.
The political storm set off by Obamacare may not subside, one way or another, until the public determines next November whether it will preserve in office the president who was determined to push it through with a Congress controlled by his party. Until then, the battle has already begun in the courts. Challenges to the Patient Protection and Affordable Care Act (PPACA) have been filed in federal courts in several parts of the country, with some judges sustaining the PPACA and others holding it unconstitutional.
The legal challenge has merged with the political challenge. For the most serious argument against Obamacare is that it threatens to change the American regime in a grave way: that it sweeps past the constitutional restraints intended to ensure a federal government “limited” in its ends, confined to certain “enumerated” powers, and respecting a domain of local responsibilities that it has no need or rationale for displacing.
And yet those limits have been so thoroughly exceeded over the years that they are now barely discernible. A federal government that can tear down and build housing in the cities, sponsor clinics on contraception, and impose unions on private companies, knows no distinct sense of boundaries. The formula for this expansion of the powers of the government has been settled now for nearly seventy-five years, since the New Deal. In creating Obamacare, the Democrats were simply drawing on a playbook long ago grown familiar.
The key to this expansion has been the Commerce Clause of the Constitution. Before 1937, that clause had offered a rough way of limiting the powers of Congress to transactions and activities that moved across state lines. The limitation did not always make sense, but it was a criterion sufficiently plain to ordinary folk, and good enough to limit federal power. But with the New Deal, the powers of Congress were extended to all activities that might somehow “affect” interstate commerce. In this way, and only in this way, could the Supreme Court sustain the government, in 1942, when it sought to bar Roscoe Filburn, a farmer in Ohio, from setting aside a portion of the wheat he was growing on his own farm for the use of his own family (Wickard v. Filburn). As the urbane Justice Robert Jackson explained, if every farmer claimed the right to do that, those many private acts, aggregated, could undermine a scheme that required the regulation of the national production of wheat.
The problem for conservatives is that even the jurists they most admire, such as Justice Scalia and the late Chief Justice Rehnquist, have shown their conservatism by their willingness to honor the precedents long settled by their liberal predecessors. And so, only a few years ago, Scalia was willing to invoke again this understanding—long settled among liberal judges—to explain why the federal regulation of controlled substances could not permit people in California to grow marijuana in their own gardens for their own private use.
Some of our most accomplished lawyers have sought to argue that Obamacare represents “a bridge too far”—that if the federal government can manage the access of individuals to their medical care, there is virtually no limit to what it can do, either in exercising every power now exercised by local governments or deeply invading the zone of personal freedom. But whether or not these lawyers notice it, they have come to argue within the same terms that judges have come to use and accept—and embed—in the law of the Commerce Clause. And as they do that, they may be deflecting themselves from the most powerful arguments against Obamacare, the arguments that run to the root of the law in “natural rights.”
We now find some of our best jural minds trying to concentrate their outrage on the moral problem at the center of this political takeover of medical care, and they reach the thunderous conclusion that with Obamacare we are—gasp—going to be compelled to buy something. Buy a product, buy a service, we have no interest in buying. The service is that of medical insurance offered by private companies.
The rationale of the act is to make sure that the medical care of every person is funded, and to cover the wave of costs that come about when hospitals are compelled to take in every person who shows up in an emergency room and insurance companies are barred from refusing to insure people who come with “pre-existing conditions.” The poor and the sick are mainly exempted from expense, and so the costs will be covered by compelling the purchase of a privately sold product by healthy, often young, people who have been unwilling to purchase the insurance. The scheme of legal compulsion is justified by the claim that it will serve, in the aggregate, the health of the public.
The counter-argument has been that many other products may plausibly serve the public health, and so people could be compelled, perhaps, to purchase broccoli or electric cars. These arguments have been made widely, but they have rarely been brought together as powerfully as they were by Judges Joel Dubina and Frank Hull of the United States Court of Appeals for the Eleventh Circuit this past August when they struck down this mandate to buy a privately sold service. “Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products,” they wrote in Florida v. Health and Human Services, and yet even in the modern era Congress had not asserted this authority:
Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle. . . . The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.
For all we know, that argument may work. It may persuade five justices on the Supreme Court as it has persuaded some judges in some of the lower courts, and if it does, I for one will be grateful for the result. And yet . . . we need to remind ourselves that this same argument could have been made against the Civil Rights Act of 1964. The federal government had penetrated deeply into the ordering and regulation of the private sphere. It told people who were quite unwilling to have commerce with black people that they had to engage with those black people if they wished to stay in business.
The legal scholar Gerhard Casper registered the point at the time that it was a strange view of rights that someone had a right to compel an unwilling vendor to sell or engage with him. Compared with that, forcing people to buy something, even a medical policy, hardly seems a dramatic novelty. When we compare the implications of the PPACA to the implications that were recognized in 1937, when the jurisprudence of the Commerce Clause was recast, the requirement that people buy something is a command that pales in its significance, and somehow loses its capacity to shock.
The implications of that shift in 1937 were drawn out with a jarring simplicity and directness by Justice James McReynolds in his dissenting opinions in the famous Labor Board cases. At issue in those cases was the claim of the federal government to impose unions, with closed shops, on private companies.
One of the cases involved a men’s clothing factory in Richmond. The argument for the authority of the government to impose a union on a private business moved through a chain of predictions, all problematic: If the company resisted the union, it would bring on a strike, a strike would force the stoppage of production, and that would interrupt or diminish the flow of interstate commerce. The firing of twenty-nine employees out of eight hundred in a factory accounting for one-half of one percent of the men’s clothing produced in this country would constitute a sufficient blockage to interstate commerce—it would have such an effect on interstate commerce—that the federal government was justified in imposing restrictions on hiring and firing in private businesses.
Once that kind of proposition was in place it was simply a matter of delicacy to hold back from making starkly explicit the implications. McReynolds, a cantankerous, nasty man, was never supplied with delicacy, and he suffered no inhibitions on drawing out those implications at the time:
May a mill owner be prohibited from closing his factory or discontinuing his business because so to do would stop the flow of products to and from his plant in interstate commerce? May employees in a factory be restrained from quitting work in a body because this will close the factory and thereby stop the flow of commerce? May arson of a factory be made a Federal offense whenever this would interfere with such flow? If the business cannot continue with the existing wage scale, may Congress command a reduction?
Of course the other, common-sense implication was: Why not simply ban the strike itself, if that is what would cause the flow of commerce to stop? McReynolds himself was so aghast at the notion that the government could command a reduction in the salaries of the employees or actually bar them from quitting work that he thought simply drawing out those shocking implications would be enough to make his point. McReynolds’ reductio ad absurdum is based on the deepest axioms of personal freedom, axioms that run back to the work of those judges who came out of the anti-slavery movement.
The most telling argument came in 1908 when the threads were brought together by Justice John Harlan, the great dissenter in Plessy v. Ferguson. The occasion came in Adair v. United States, when the Supreme Court struck down a portion of a congressional act of 1898 that barred discrimination against labor unions in railroads engaged in interstate traffic. His argument began with premises that rejected slavery: No man is by nature the owner or ruler of other men; a man’s labor belongs to himself, as he belongs to himself. No man had an obligation then to justify himself when he walked off a job, when he left the employ of any other man. But then, on the other side, the employer would surely be reckoned as no less a human being than the employee, with no lesser claim to natural right, and with no lesser claim to his own liberty of association.
Workers surely had to be free to form an association with other workers in the same workplace; that right was simply implicit in their standing as free men. And surely they were free to decide that they would not work in any establishment that did not do its hiring solely from the membership of their union. But to say that the workers had the power to deny work to a person not a member of their union, or deny to an employer his own freedom of association, was to back into contradiction. As Harlan explained, the employer’s right to his own freedom of association entailed a right to quit his association with any workers who were governed by that kind of code, who would claim the power to deny work to other men and deny to the owner his own right to association for a legitimate end.
The argument was heard, of course, that the supposed liberty here and equality of right were denied by the striking asymmetry of bargaining power between the employer and workers who needed jobs. That enduring question was given its enduring answer by Justice Pitney in Coppage v. Kansas in 1915. As Pitney noted, “Wherever the right of private property exists, there must and will be inequalities of fortune; and thus it naturally happens that parties negotiating about a contract are not equally unhampered by circumstances.” There will always be asymmetries for life itself abounds in asymmetries. Truck drivers and construction workers may buy cars from Ford. Between the corporation and the buyers is the most obvious imbalance of assets. But would anyone say that the buyers here were incapable of making judgments about the transactions suiting their interests, or their capacity to honor the obligations of a contract they were free to accept or reject?
It seems to me that Harlan’s argument, returning to the axioms of personal liberty, was the most critical ground for the resistance to that expansion of the Commerce Clause in 1937. But axioms of freedom were rather dismissed by the lawyers for the government, and when they were pushed aside, they faded from prominence in our recollection of the key cases here. What lingered was the box score, and what faded from the furnishings of mind of our lawyers was that concern for the axioms of freedom.
The lesson for our own day is that our lawyers are getting fixated on certain portions of the argument of the Commerce Clause that might just convince the courts, but they may be missing the arguments that really go to the root of the problem with Obamacare. And because they do go to the root—because they do touch the matter of natural right—those arguments may be far more readily understood by the public than arguments that depend on tutoring people on Wickard v. Filburn and the chains of argument that have been contrived under the Commerce Clause.
How might that case be made then again as a matter of natural right in regard to Obamacare? Not by insisting that we have a natural right not be coerced into buying things we have no wish to buy, but by pointing out that this scheme of national medical care is virtually bound to produce a scheme of rationing, as it has produced that rationing in Britain and Canada, denying medical care to people now entirely reliant on the government for their care. The serious question then is whether this denial to people of the means to preserve their own lives, with means quite legitimate, touches the ground of natural rights.
I believe that it does. We now have in place the scheme for commissions of unelected people, wielding vast discretionary power, set to be loosed entirely from tethers of restraint in 2019, and likely to ration health care as it is now rationed in England. The New York Times reporter John Burns has remarked that in England his son, born weighing only one pound, would not have been given the life-sustaining treatment that brought him through in the United States. I know people in their eighties on dialysis in this country, a procedure that would be denied them in England.
Under Obamacare, medical care will not be denied by an insurance company, under arrangements people had chosen and accepted themselves. If experience offers any guide, there may be more layers of appeal, review, and reversal in the procedures of insurance companies than in a system of command and control run by the central government.
The crucial point, then, is that treatment would be denied by a government that may have the monopoly power to grant or withhold medical care that seems to any person quite necessary to preserve his life. The government, in other words, would deny the right of a person to seek the preservation of his life through means that are thoroughly legitimate, involving no threat to the lives of others and no moral injury sustained to himself.
We have had an interesting, precise test case of the strength of the right to preserve one’s own life through legitimate means just five years ago in Abigail Alliance v. von Eschenbach, decided by the United States Court of Appeals for the District of Columbia. The Abigail Alliance represented patients thought to be terminally ill with cancer, who had reason to believe that they could buy some time for themselves, and perhaps even save their lives, if they could have access to medicines that had already gone through Phase I of the trials at the Food and Drug Administration.
For a drug to have gone through Phase I is taken to mean that it is safe enough that a researcher is warranted in testing the drugs on a larger number of people. As Judge Ricardo Urbina in the federal district court put it, the legal question was “whether the Due Process Clause protects the right of terminally ill patients to decide, without FDA interference, whether to assume the risks of using potentially life-saving investigational new drugs” that the FDA thought safe enough for testing but had not approved for sale.
The Abigail Alliance lost in the district court because it could not persuade Judge Urbina that it was not seeking the confirmation of some new right unknown to the law, but simply the recognition and confirmation of one of those primary, natural rights that were mentioned in the Due Process Clause of the Constitution—namely, that people should not be deprived of life, liberty, or property without due process of law. One would think that anyone remotely familiar with the founding generation would understand that the right of an innocent person to protect himself from an unjustified assault or an unwarranted hazarding of his life was not something invented by the positive law. It was one of those rights that existed even before the advent of the government, and it would be there even when the government broke down. But the judge, falling into conventions quite familiar, treated that right as something brought into existence, and shaped at will, by the positive law.
That decision was overturned by a panel of three judges from the Court of Appeals, including Douglas Ginsburg and Judith Rogers, who invoked “natural rights,” but in a way muffled by their evident reluctance to accept any rights not made explicit in the text of the Constitution. They professed to see two paths before them. One involved an appeal to “autonomy,” moving along the same lines of inference that produced in the past the rights to contraception and abortion. The other involved the appeal to rights thought to be “fundamental” because they were “deeply rooted in this Nation’s history and tradition.” But this second approach shifts the test. Instead of drawing out the logical implications of an axiom or a first principle, the judges fall into legislative history with all of its hazards: How far back does it run, and how “fundamental” did judges really think this right was?
Rogers and Ginsburg took the second path, which they thought was the more conservative and restrictive approach, but in their defensiveness they put in place the ground of their later overruling. They had not claimed that the principle can be grasped per se nota, as true in itself, much as we grasp that familiar first principle that we may not hold people blameworthy or responsible for acts they were powerless to affect. They claimed the authority to pronounce the principle, not because it was an axiom that instantly commanded our reason, but because William Blackstone and other commentators had made note of it. The principle claimed standing in the law because a notable writer on the law had mentioned it.
It seemed to come as a surprise to them when they were overruled by a fuller appellate court containing some of the most reliable figures in conservative jurisprudence, such as Raymond Randolph, Thomas Griffith, and Janice Rogers Brown. Judge Griffith, writing for the majority, sought to show that the freedom to use drugs or pharmaceuticals had been regulated by the positive law in measures even earlier than the American republic. And so the legislature of Virginia in 1736 barred the dispensing of more drugs than was “necessary and useful” because the practice, unbounded, had become “dangerous and intolerable.” As Judge Griffith framed the problem, it came down to “whether terminally ill patients have a fundamental right to procure and use an experimental drug before the FDA and the scientific community have evaluated its scientific and medical risks and corresponding benefits, as called for in the [Food, Drug and Cosmetic Act of 1938] and its accompanying regulations.”
Judge Griffith pointed out that the terminally ill patient need not always await the outcomes of clinical trials. The FDA and Congress had already made provision for early access to “promising experimental” drugs in the case of “serious or immediately life-threatening disease,” if there was no plausible alternative drug or therapy, if the drug was under investigation in a “controlled clinical trial,” and if the sponsor of the drug was actively pursuing, with due diligence, the permission to market the drug. Translation: You may possibly get access to the drug, but on terms that give primacy to the protocols of regulation.
But the litigants were insisting on a deep axiom involving their freedom to preserve their lives with all rightful means, a right that runs deeper than the claims of any regulatory apparatus. That is where the sharp claim is made, invoking natural rights, and that is where the argument encounters its serious resistance, even on the part of judges who have been tagged accurately as “conservative judges.”
Abigail Alliance may be only a measure of the extent to which the people doing conservative jurisprudence have detached themselves from claims of natural right and natural law. They have detached themselves mainly because they have recoiled from what they have seen as a spectacle of “activist” judges, soaring off with specious claims to a higher law and detaching themselves from anything in the text of the Constitution. But if the conservative judges can identify what they think is a striking abuse of judicial discretion and a fraudulent appeal to a natural law, surely the more apt corrective is to get clear on the difference between that abuse of jural reasoning and the real discipline of natural law reasoning, which finds its ground in the axioms, or the first principles, of our reasoning.
There has been no want of examples of conservative judges finding it necessary to move beyond the text of the Constitution in explaining what they think various provisions in the Constitution really mean (as in the right of the people “to keep and bear arms”). But the melancholy point is that the conservative judges have struck for so long now the posture of skepticism over moral reasoning outside the text that they seem to have come full circle in converging with their liberal opposites: They too profess now the most serious doubt that there are real moral truths that reason can discern, truths that can be recognized as true even across the divide that separates liberals and conservatives.
That lingering doubt about the truth of moral reasoning may mark the condition of the conservative judges in our own day. But it may also be the screen that now works to filter out for them the deepest axioms of the law, and the most powerful arguments that may be brought to bear against the statism and controls of Obamacare.
One redeeming path of rescue for the conservatives may have been found, quite without planning, in the recent briefs against Obamacare. The judges in the Eleventh Circuit had the chance to draw on the persuasive brief written by Gregory Katsas, an accomplished young lawyer who directed the late Bush administration’s litigation in its civil cases. His brief was sharp and pointed in many ways, but in one part it drew upon the reasoning I have identified with natural law. He drew upon an argument made by Daniel Webster and John Marshall in 1819 in the famous case of Dartmouth College v. Woodward: Imposing on people a contract they do not want would be quite as wrong as dissolving, without their consent, a contract they had knowingly made.
Katsas then invokes Justice Joseph Story, in his Commentaries on the Constitution, remarking that such laws contravene “the nature of republican and free governments,” and they would be wrong, inadmissible, invalid even “independently of the constitution of the United States.” He was taking the matter back then to deep principles of lawfulness, which do not depend on their mention in the text of the Constitution, and when a lawyer does that, he is doing the defining work of natural law.
But then, after arguing in this way that the laws imposing Obamacare are deeply wrong, he concludes that they must be beyond the constitutional limit of a government of “enumerated powers.” The right not to have those kinds of laws imposed must be one of those rights that the Tenth Amendment protects, when it reserves certain rights to the states and the people. It is worth noting—and savoring—the path he has taken: Katsas appeals to the deep principles beyond the text for the sake of identifying the “wrong” in the case—and the “correlative” right not to suffer that wrong. Once he had that right in hand, he could then place it among the rights that a government of constitutional restraints had meant to foreclose.
For the judges, and for conservative lawyers looking on, he was playing the game correctly: He finally seemed to find a location in the text of the Constitution for the right he was invoking. But what a detached philosopher would have to point out here is that it wasn’t the Tenth Amendment, or anything else in the text, that was doing the heavy lifting. The Constitution was brought in only after the natural law had been engaged to explain, as only the natural law could, the deep wrongs and rights of the matter.
Hadley Arkes, a member of First Things’ advisory council, is the Ney Professor in American Institutions at Amherst College.