In the Season of Hope Renewed: Friends Bearing Losing Arguments

Sunday, March 21, 2010 is a day that will live in infamy, or as one wag put it, live in “infirmary.” For that is the day on which the House of Representatives voted into law the national takeover of medical care. At this final moment, the last veil of pretense dropped away, and the “pro-life Democrats” were revealed for what they had always truly been: liberals for whom the protection of the unborn would always be subordinate to the interests of the liberal agenda. But what can one make of a passion for “health care” that is willing to absorb, without a wince of regret, a measure that will encourage more killing of the unborn by the provision of public funding, public endorsement, public promotion?

In this season of Easter, of life renewed, there is a strong surge of confidence that this monstrosity of a legislative act will not survive. The exposure of the pro-life Democrats offered one of those mind-clearing experiences for pro-lifers. Many things have become sharply clear to the public as a result of the whole tawdry experience in passing Obamacare.

In the aftermath, many of us were taking heart at the move of attorneys generalhttp:// in several states to go into court to challenge the constitutionality of this massive takeover of one-sixth of the economy.

There are many plausible points at which that constitutional challenge may be posed, and we may take the occasion of these columns to mull over some of those most promising. From the standpoint of the states, there may indeed a plausible interest in contesting “unfunded mandates.” If the expenditures are mandated by the national government, Congress should face up to the responsibility of taking those charges as its own – and raise the taxes to support them. Kenneth Cuccinelli, the new Attorney General of Virginia is by all accounts a good man, a promising figure for the pro-life cause. But he has weighed in with one argument so implausible that it looks dangerously close to a “planned failure” – a move designed purposely to fail. And that is the move to contest the authority of Congress, under the Commerce Clause, to make the purchase of health insurance compulsory.

For the record, I recoil from that policy, and I would like to see it contested. But a move to challenge that provision under the Commerce Clause is a move that may discredit the seriousness of the issue by producing a highly advertised defeat. Since the New Deal, the Commerce Clause has been satisfied by theories speculative and quite imaginary. As Professor Laurence Tribe has pointed, their virtue, for his side, is that they are detached from any need to provide empirical evidence to support them.

Fifteen years ago the Supreme Court began to cut back on the reach of the Clause when it came to concerns not exactly “economic” – as in barring the use of guns near schools. But the Court was willing to give the widest latitude to policies that touched any economic transactions. The Congress might not bar the use of guns near schools, but the sale of guns near schools? That, for the Court, is a different matter. As long as people pay to buy insurance, whether on their own or through compulsion, that counts as an “economic” exchange. The Court will readily accept the argument that the market for health insurance is national in scope; that Congress regards the high costs of insurance to constitute a national crisis; and the Court will not contest the authority of the Congress to make its own judgment on how to deal with that crisis.

The telling case here runs back to 1942, when Roscoe Filburn, in Ohio, was not allowed to set aside, from the wheat grown on his farm, a portion to be consumed by his own family. Several years ago the Court, invoking that signal case, refused to permit a scheme of allowing people to grow marijuana on private plots in California. In both cases, the Court argued that a scheme of national regulation could be undermined if everyone similarly situated wished to do the same thing. Using the same rationale, the Court upheld the Civil Rights Act of 1964 with reasoning of this kind: If owners of private restaurants and inns refused to take black people as customers, blacks would not travel as much, there would be less business then, fewer orders then for meat, linen, silverware and many other things. The moral problem then, transmuted through the Commerce Clause: there would be a massive decline in interstate commerce.

Nothing in the mere vacuity of these arguments has been able to break the attachment that lawyers and judges have to them. And yet jurists have been moved to overthrow the doctrines that have recruited their deepest loyalties when they are shown to work against that critical “right to abortion.” I have offered then this alternative brief: That private abortion may be singularly yours, but when it is accumulated with 1.3 million others, every year, it is part of a wave that has the most depressing effect on the sale of diapers, bassinets, baby clothes, college tuitions, weddings – to say nothing of removing a whole cohort of taxpayers, coming of age every year, to support social security and medical care.

And besides, abortion interferes, in the most decisive way, with the freedom of a fetus to travel in interstate commerce.


Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.