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Napolitano on Health-Care Reform and the Constitution: Is the Commerce Clause Really Limited?

Great piece by Napolitano in the Wall Street Journal. He argues there is no constitutional authority for Congress to regulate the provision of healthcare; and that it is not to be found in the commerce clause.

I agree… but the more skeptical I get of the Constitution’s legitimacy and the events that led to its founding (in part due to Hummel’s great article and others), I wonder if the commerce clause really was intended to be so limited–and if its original understanding is as innocuous and limited as we libertarians often argue, and would like to believe. Sheldon Richman argues (based on Crosskey et al.) that of course it was meant to centralize power, but the federalists had to pretend it did not during debates with the anti-feds (which could affect the public meaning of the words ultimately ratified, I suppose, but still). I.e., maybe Wickard v. Filburn was right–maybe the IC clause is basically a (sneaky) grant of plenary legislative power to Congress–which means there is even more reason to reject the Constitution’s validity.

To be clear, I don’t quite accept Richman’s reasoning–for one reason, Richman’s vision of the meaning of federalism and enumerated powers is somewhat different from mine in this regard, since he takes the term “perpetual union” to prohibit secession, which is ridiculous in my view (the word “perpetual” is not a grant of power to the feds to do anything about it), making me skeptical of his reading of the IC clause as well. No doubt the federalists wanted to centralize; but I think they were not able to do it completely; the antifederalists blocked them, and forced them to give public declarations of the meaning of unclear terms before ratification, which has some bearing on the original public meaning of these provisions–that is, the antifederalists succeeded in boxing in the federalists. At least to some degree.

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  • t wirkman v September 17, 2009, 1:17 am

    It seems to me that the commerce clause would allow Congress to regulate the purchasing of medical insurance from a citizen of one state from a company in another, but not allow Congress to regulate the goods (such as insurance policies) sold in one state and bought in that same state.

    Is this a reasonable interpretation?

    Napolitano argues that the limited regulatory powers originally conceived would prohibit excessive regulation by the federal government.

    But I don’t see him addressing the continued powers of the states to regulate commerce within their borders . . . something that an authentic federalist would have to concede constitutional, no?

  • Stephan Kinsella September 17, 2009, 1:24 am

    Wirkman: “It seems to me that the commerce clause would allow Congress to regulate the purchasing of medical insurance from a citizen of one state from a company in another, but not allow Congress to regulate the goods (such as insurance policies) sold in one state and bought in that same state.”

    Well, those who construe the IC clause strictly (I used to) would say that Congress can’t even do this–they can only use the IC clause to basically prevent interstate trade barriers.

    But … I am not sure. But yes, you aer right, it treats intra and inter-state commerce differently.

    “But I don’t see him addressing the continued powers of the states to regulate commerce within their borders . . . something that an authentic federalist would have to concede constitutional, no?”

    Well, sure. It’s constitutional from the point of view of the federal constitution, which created and thus limits the federal gov’t. Nap doesn’t address it, I think, b/c the legislation at hand is federal. But sure–the federal constitution doesn’t limit states from internally regulating such matters. But that doesn’t mean the state laws would be constitutional–might well violate their own constitutions, many of which have bills of rights including mini-ninth amendments.

    • Steve Mac December 26, 2009, 11:03 pm

      It seems to me that the CC would not come into play because the very act of mandating the purchase of a specific product violates the 10th amendment since there is not a specific power granted to the federal government to mandate a purchase of a product or good. If the states decide to mandate the purchase of insurance, then the commerce clause could be argued as a regulatory provision but not as a justification for enacting a mandate/law?

      Steve

  • Sheldon Richman September 17, 2009, 12:32 pm

    Stephan, if I said that “perpetual union” proved that secession was illegal, it was a highly tentative blurt-out. I wasn’t offering a firm well-researched position. Rather, I thought it shed light on the frame of mind during the Confederation period. The word “perpetual” after all was in the title of the Articles. Why was that?

    At any rate, I agree with Jeff Hummel that whether secession is legal or not is way beside the point. Who cares? An individual and voluntary associations should be free to secede because it’s entailed in the concept of freedom. I’m sure in the early days of the Republic, you could find people on both sides of the question. The documents are always vague on such things. For that reason it’s not worth debating.

    • Stephan Kinsella September 17, 2009, 12:57 pm

      Sheldon:

      Stephan, if I said that “perpetual union” proved that secession was illegal, it was a highly tentative blurt-out. I wasn’t offering a firm well-researched position. Rather, I thought it shed light on the frame of mind during the Confederation period. The word “perpetual” after all was in the title of the Articles. Why was that?

      Well you wrote: “By the way, the full title of the Articles of Confederation is: Articles of Confederation and Perpetual Union. This doesn’t help the pro-secessionist case. I’m beginning to think there is no legal authority to secede. Moral authority is a different matter, of course.”

      But glad your thoughts are only tentative on this (as are mine re the IC clause). I thought you were trying to use the Straussian-Sanderferian bullshit argument in defense of the critique of secessionism. Those loathsome statist centralist PC types want to argue for more federal powers than exist, so as to permit the feds to have more centralist power. If I read you correctly, you want to argue this (e..g in the IC case) to show how bad the Constitution is. On that score, I’m with you.

      At any rate, I agree with Jeff Hummel that whether secession is legal or not is way beside the point. Who cares? An individual and voluntary associations should be free to secede because it’s entailed in the concept of freedom. I’m sure in the early days of the Republic, you could find people on both sides of the question. The documents are always vague on such things. For that reason it’s not worth debating.

      I disagree that it’s not worth debating. We are debating it now. And the problem here is that any principled libertarian will of course oppose the war and killing and illegality perpetrated by Lincoln. The retort to us by the PC pinhead faux-libertarians like Tim Sandefur is that secession was illegal (and for such centralist-statists, this is not irrelevant). And if you point out that this is false, you are called a neo-confederate or doughboy, racist or apologist for slavery. (Surely you are familiar with such dishonest, scurrilous attacks.) I agree that there is a defacto moral right to secede (implied by the lack of moral right of the central government to stop it) but this does not imply that it’s a waste of time to point out that there was also a constitutional right. That means the proponents of war, such as Sandefur and the Straussians, are doubly if not triply wrong.

  • vc March 28, 2010, 12:34 pm

    There is a basic misunderstanding with regard to the word “perpetual”.

    A contract is an agreement over time with consideration.

    The word “perpetual” in this instance means that this contract does not expire.

    The misapprehension is the unfortunate and clearly false interpretation that “perpetual” means irrevocable.

  • Publius April 11, 2010, 11:16 pm

    I think you will find that “perpetual” has specific meaning in the context of legal contracts. E.g., some legal contracts specify a clearly defined expiration date or completion date. I might sign a contract to purchase beans for 10 years at a certain rate, after which the contract expires and I would have to renegotiate a new one.

    Perpetual is sometimes used in commercial contracts that are intended to have no explicit termination.

    So from that perspective, I’m sure Perpetual means in the ArtConfed what everyone thinks it means.

    However, a concept that should be getting explored here is breach of contract. The Constitution is a multi-party contract between the Federal Government, the States, and the People. Yet as with other contracts, if the other party breaches then I am no longer under any obligation to continue to fulfill my end of the bargain.

    While commercial contracts often have clauses expressly identifying what happens in case of breach, the Constitution doesn’t seem to. However, there is one in reality: it’s not written in the text, because it’s simple: the aggrieved party stands up, declares that they are no longer subject to the law because one of the other parties has breached the contract, and basically will dare them to try to enforce it. This type of rebellion was a possibility certainly in the minds of the men who had just revolted against King George, and it is written clearly in the Declaration of Independence. Secession from the authority of a tyrannical government is a natural human right.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. “

    The only moral purpose of a law is to protect my rights. The law is not a box within which I must constrain my liberty, to enable others to violate my rights.

    We give up our liberty if we deny that every man has the right to stand up and say, “I will not be a subject to an unjust law.” Orderly society is a value but order does not trump liberty!

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