Our Inconvenient Constitution

The question of questions for the politician should ever be — “what type of social structure am I tending to produce?” But this is a question he never entertains. (Herbert Spencer, “The Coming Slavery.”)

It is hard for an abstraction to win against a poor mother with a kid who is uninsured. But this kind of phenomenon has been the story for a long time.

Human beings are prone to ignore the long-run, hard to measure, and more abstract consequences of their actions, especially in the public sphere. Each decision is taken is response to some concrete problem or need. “It is all about people; it is all about jobs; it is all about health,” we are told. Sometimes it is about the goals of special, concentrated interests. Other times people think of themselves as voting for the concrete interests of worthy individuals or groups.

Of course, there is usually a net social loss of wealth or efficiency. But that is not the main loss. The real loss is the weakening of the institutional and legal framework that can protect us from a serious diminution of liberty.

Consider the insurance mandate in the healthcare bill that was just passed. Much of this law – like the “free-of-charge” elimination of pre-existing conditions exclusions – will not work without forcing healthy, usually young people, to buy insurance. If they were not forced, they would likely wait until they became ill before they bought health insurance. As a result, insurance companies would turn into the losing providers of healthcare to these people. Of course, premiums would have to be raised. But then more people would drop out of the insurance pool until they were sick. The system would collapse.

So we must be practical and mandate insurance coverage for all to make this particular scheme work.

But is this constitutional? Jonathan Turley has written a very interesting opinion article in USA Today on this issue arguing that it is not (or at least should not be).

It may seem like a very arcane, legalistic and abstract issue to raise against the concrete benefits of Obamacare. After all, there are sick people out there.

However, Congress has the right to regulate only interstate commerce. The rest – commerce within a state – is left to the several states. Thus this is an issue of federalism. The recent history of the limits on the federal government in this area has not been good. Almost everything is now considered “interstate commerce” by the courts. So the effective limits to the expansion of federal authority have shrunk simply by judicial fiat. The literal structure of our government has not been changed. (It is apparently too much trouble to do that!)

For the mandate to be constitutional, a person’s refusal to buy health insurance must be considered interstate commerce. In other words, the refusal to engage in commerce must be considered commerce. (We can make this sound nicer by rephrasing it – the refusal to engage in commerce affects interstate commerce, say, health insurance rates across state lines.)

If this simple act of omission is “interstate commerce” within the meaning of the Constitution, what is not interstate commerce?

I realize that much constitutional law has been like this for quite some time. But this is part of my point. Even judges whose job it is to keep an eye on the long-term, institutional, and abstract consequences of policy do not. They are frequently in the same swamp as the politicians and voters.

Little by little we have sacrificed our constitutional protections because of promised concrete gains at the cost of very little (or so it seemed) transformation of our political order. Yet the unexpected result of all of these individual tradeoffs has been a major transformation.

The admittedly-imperfect federal system was designed to protect us from a large, overweening federal government. It was designed to allow for checks on centralized power, for experimentation on a state-by-state basis, and for voting with one’s feet if a state proves to be oppressive.

A decision by courts or the Supreme Court to extend the meaning of “interstate commerce” allowing the mandated purchase of insurance would further weaken the federal system, regardless of whatever clever turn of phrase lawyers or judges can invent. The facts on the ground are what they are.

The siren call of the immediate, concrete, and particular benefits to particular people is very strong. That is why wise men tried to tie us to the mast of the Constitution.

We need a new commitment to the legal order that made us free.

Addendum: There is a technical psychological literature that deals with the claims of the concrete versus those of the general and abstract. For some discussion in the context of law and ethics, see my article here.

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