Tuesday, December 14, 2010

The "Children of Men" scenario

Megan comments on "The preposterousness of the Commerce Clause":

On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can't the government force you to do?

This doesn't seem to be a question that interests progressives; they just aren't very excited about economic liberty beyond maybe the freedom to operate a food truck. And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system. If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it's an actual horror at the ever-expanding assertion of government powers. I'd like it if they'd get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I'd like.
I was thinking about the P.D. James book (and similar movie) "The Children of Men" set in a dystopian future of mass infertility. As the population ages and dies away, there are no children being born to support the creaky, desperate society. I know this is bit of a stretch but what if the government declared that – in the interest of regulating commerce and keeping the factories running with workers – birth control should be outlawed?

Preposterous, I know. But this is the question that I keep seeing over and over again: what can't the government force you to do? We laugh about "eating broccoli" and "compulsory exercise" today to keep health costs down but the much larger concern is what portion of freedom we're willing to give up for health care. The individual mandate is a novel and unexplored extension of what used to be a limited government.

I hope the liberal supporters of health care reform understand that once they cut down the laws to get what they want, the devil may turn around on them.

7 comments:

Anonymous said...

The devil's had 218 years to turn around and get here; I don't think he's coming...

In 1792, the Second Congress passed a law mandating "each and every free able-bodied white male citizen" to enroll in militias, declaring that "every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service."

Officers were required to arm themselves "with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges." Furthermore, "each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps," "each dragoon [is] to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols," and all brigade volunteers "shall be uniformly clothed in raiments, to be furnished at their expense."

And these guys were the ACTUAL Tea Partiers.

http://www.constitution.org/mil/mil_act_1792.htm

Eric said...

Wow, you had to go back to when the country was three years old to find a relevant precedent? That's dedication.

Of course the Act was repealed and never reviewed by the Supreme Court to see if it passed Constitutional muster, but hey.

Jake Ice said...

Considering the government has the power to enroll you in the military without your will and send you to a war zone, everything else kind of pales in comparison.

Anonymous said...

"Judges should be originalists... except when it's inconvenient!"

Incidentally, the Act was never repealed. It was amended in 1862 to incorporate black soldiers. And it was made obsolete in 1903 when the National Guard was created. But hey.

Eric said...

Are we really going to have this argument that an 18-century law on state militias and flintlock rifles is equivalent to a 21st century interpretation of the Commerce Clause?

But then I noticed you never answered my original question: based on the brand-new interpretation of the Commerce Clause, is there anything the government can't force you to do or purchase in the name of "regulating" commerce?

Oh, no, let's talk about chamberpots and squirrel guns.

Anonymous said...

Your "expiration date" theory of American jurisprudence intrigues me.

Are we really going to have an argument that an 18th-century law on the right to keep and bear arms is equivalent to the 21st-century existence of teflon "cop-killer" bullets and Uzis?

Are we really going to have an argument that an 18th-century law banning abridgement of the press is equivalent to 21st-century outlets publishing Wikileaks and NSA wiretapping data?

Are we really going to have an argument that an 18th-century law against unreasonable searches and seizure of one's person is equivalent to 21st-century body scanning technology and patdowns at the airport?

The answer is yes. (Even when it makes our 21st-century arguments harder to win.)

So, what of the general welfare and can we stop socialist fascists from cramming broccoli, yadda, yadda? Extrapolations of the Commerce Clause have been limited by some Supreme Court decisions. They are always limited by political will and circumstances, and are correctable by same.

Article 1, Section 9, which immediately follows the Commerce Clause, spells out the intended limits on Congressional powers; you'd think that that would have been a good place to undercut the Commerce Clause if that's what they'd wanted to do.

Only one Constitutional power is granted to Congress that also specifically includes the means to accomplish the power's stated purpose: patents and copyright. Thus, subsequent debate over the "necessary and proper" applications of the Constitution isn't an unforeseen loophole; it's the most demonstrable example of "original intent" we've got.

Eric said...

OK, yes, good points on the evolving Constitution and I think I'm out of my league with regard to the legal interpretation. But why does every new interpretation - from Obamacare to TSA searches - involve a new restriction on freedom?

At least with the TSA thing, you can take the train.