While I'm far from happy about the
Supreme Court's decision affirming the federal government's right to
force people to buy the products of insurance companies, I can't say
I agree with the emphasis so many people unhappy with the decision have placed on it.
Not because the insurance mandate isn't awful- it certainly is- but
because I just don't see the Supreme Court's decision upholding the mandate as constitutional as anything more than business as usual.
Yes, it's true that giving the federal
government the power to force people to engage in a particular
business transaction is a new usurpation of unconstitutional
authority that makes a mockery of the idea of a government with
limited powers restrained to the modest role defined for it in the
Constitution. Which is bad, but at this point but it's sort of like a
single bullet from an entire magazine that someone just emptied into
you- it's always better to have fewer 5.56mm holes in your chest
rather than more, certainly, but if there's already 29 of them it's a
bit silly to curse the 30th as the one that killed you.
Thus, while I certainly don't think the
mandate is constitutional- if we're defining “constitutional”
according to that document's text- I find the arguments of its more
mainstream opponents against its constitutionality uncompelling. Much
was made by some critics of the mandate of the fact that the mandate
compels a person to actively engage in commerce, rather than
regulating or forbidding commerce that already exist. As much as I
oppose their premises, I actually agree with liberal defenders of the
mandate that this distinction is meaningless hairsplitting.
Yeah, forcing people to buy the
products of private firms is not a power the federal government has
previously had, or one the Constitution suggests that it has. So
what?
Think about the state of constitutional
government prior to this. The United States was already a country
where the power to take private property “for public use”
encompasses taking people's homes and giving them to private
developers, where growing food on your own land to eat in your own
home on that land can be regulated as “interstate commerce,”
where forcing men from their and homes against their will and making
them serve in the military at gunpoint is not “involuntary
servitude,”where the Fourth Amendment doesn't apply in the presence
of an internal combustion engine, and where neither seizing someone's
property because the police suspect them of a crime and requiring
them to prove their innocence to get it back nor imprisoning
thousands of people not convicted or even suspected of any
crime because their ancestors were born in the wrong country are
incompatible with the Constitution's guarantee of the right to trial
by jury and due process of law.
The idea that the federal government is
limited to doing the things the Constitution says it can do has been
a joke since my grandfather's time. Even the much weaker claim that
the government can't do things the Constitution explicitly says it
can't do is shaky under even the best circumstances, and things are
seldom at their best.
I don't think a strictly limited state
with powers narrowly constrained by a constitution that actually
stays that way is plausible; that's one of the major reasons I'm
an anarchocapitalist. (The monopoly state is necessarily the judge of
its own cases, and so is bound by it's constitution largely to the
extent that those who wield its power want it to be bound, and
the people most motivated to pursue that power are those who want to
use it.. Things like separation of powers can ameliorate the problem,
but don't come close to eliminating it; the only thing that could
would be a governing class free of the self-interest and hunger for
power over others endemic in the human race that supposedly makes the
state an indispensable protector for society in the first place.) You
needn't share that general perspective to accept my point in this
post, however; even if I had more confidence in the general idea of
constitutional limits as a way to hold governments in check, however,
I'd still have very little in the ability of the Constitution we
actually have to serve as a restraint on the government we actually
have.
It's a mistake to think of all the ways
that the US government violates the Constitution as merely a
concatenation of individual usurpations, because once they're as
numerous as they now are the whole becomes something more than the
sum of its parts. They cease to be exceptions to the general rule and
become examples of it. The fact that the government has claimed yet
another power it's not supposed to have does little damage to the
Constitution at this point, because periodically claiming new powers
it's not supposed to have is itself well-established as an accepted,
normal government power. Whether it uses that power to pretend that
the Constitution authorizes it to compel the purchase of a product or
forbid it is an administrative detail. Whether the ostensible justification is the power to regulate commerce between the states or the power to tax, likewise.
Now, I can understand why the decision
to uphold the mandate might be a breaking point for some libertarians
or strict constitutionalist conservatives who already abhorred the
extent to which the government has expanded, but who had previously
retained greater hope than I for a return to significant
constitutional restraints on state power. Precisely which straw turns
out to be the one that breaks the camel's back will vary from person
to person, and given the noxiousness of the mandate as a policy I can
understand why it would be worth at least two or three straws for
many.
You can- and some people, mostly
libertarians, have- make a much sounder argument that the mandate is
unconstitutional by arguing that the federal government is supposed
to be constrained to a set of very limited powers specifically
assigned to it in the Constitution that does not include making
people buy insurance. You'd be right, for whatever that's worth.
However, the most numerous and
prominent critics of Obamacare, mainline conservatives, can't make
that argument without attacking the things they themselves dear.
That's likely a big part of the reason so much argument hinged on
whether the power to compel commercial activity fell within the power
to ”regulate” it- opponents of the mandate could argue that it
doesn't without calling the scope of the government's power in
general into question.
(There's a purely practical reason to
make such an argument, to be sure- it might convince people for whom
a more radical one would be a nonstarter- but for the most part I've
seen no reason to believe that the average person treating the
distinction as important is merely pretending to do so. Hypocritical
in some cases, perhaps, but that doesn't necessarily mean being
insincere.)
The typical conservative cannot strike
wholeheartedly at Obamacare for fear of wounding himself in the
process. Conservatives have to insist that acceptance of the mandate
is a significant new leap in the unconstitutional powers of the
federal government because if it isn't they're left with two
possibilities, both unpalatable. Either the mandate and Obamacare
more generally are constitutionally legitimate, or a huge part of the
existing government isn't. The latter is something most
conservatives, whatever their rhetorical pretensions, recoil from.
The Constitution that denies the
federal government the power to control or mandate health insurance also contains no warrant for that
government to hand out Social Security and Medicare, or impose the
vast interventionist regulatory state that conservatives in actual
practice typically support no less than liberals, or give welfare to
farmers, or control lewd content on TV or the Internet, or throw drug
users in prison. Someone who endorses at least some of those things
has little standing to declare that THIS is the moment that the
federal government's disdain for the Constitution has finally gone
too far, when he accepts or outright endorses all sorts of equally
dubious laws. If the Constitution authorizes the federal government
to pull new powers out of its ass to deal with alleged threats to the
nation's welfare, it's no encroachment on the Constitution when the
federal government does just that- regardless of whether the “threat”
is people without insurance or drug users or people cussing on
network television. Many conservatives like to quote Gerald Ford's
remark that “A government big enough to give you everything you
want is a government big enough to take from you everything you
have,” but very few of them take it very seriously because they
want so very much.
The Supreme Court's upholding of the
insurance mandate is worth lamenting for the attack on liberty and
human well-being that it represents, but as a blow against the idea
of limited government constrained by the Constitution it means very
little. You can't hurt what's already dead.
