Natural Rights Should Trump Obamacare

In the December issue of First Things, Hadley Arkes takes some time to map out what should be the main augment against Obamacare: an argument based on natural rights.  Here is the current stage on which we find ourselves:

The legal challenge has merged with the political challenge. For the most serious argument against Obamacare is that it threatens to change the American regime in a grave way: that it sweeps past the constitutional restraints intended to ensure a federal government “limited” in its ends, confined to certain “enumerated” powers, and respecting a domain of local responsibilities that it has no need or rationale for displacing.  

The problem for conservatives is that

...even the jurists they most admire, such as Justice Scalia and the late Chief Justice Rehnquist, have shown their conservatism by their willingness to honor the precedents long settled by their liberal predecessors. And so, only a few years ago, Scalia was willing to invoke again this understanding—long settled among liberal judges—to explain why the federal regulation of controlled substances could not permit people in California to grow marijuana in their own gardens for their own private use.

As Arkes sees it, most, if not all, of the current arguments against Obamacare rest on the idea that even under the most expansive view of the Court's Commerce Clause jurisprudence, they have never found that simply because of an individual's existence mandates a general regulation power on behalf of the government.  This argument, however, is wanting.  Here is why:

For all we know, that argument may work. It may persuade five justices on the Supreme Court as it has persuaded some judges in some of the lower courts, and if it does, I for one will be grateful for the result. And yet . . . we need to remind ourselves that this same argument could have been made against the Civil Rights Act of 1964. The federal government had penetrated deeply into the ordering and regulation of the private sphere. It told people who were quite unwilling to have commerce with black people that they had to engage with those black people if they wished to stay in business.

The argument is basically one of incredulity:  it is based on bad Supreme Court precedent that we hope will not further evolve when the Court takes up the Obamacare case this spring.

Here is an argument that actually gets to the core: 

How might that case be made then again as a matter of natural right in regard to Obamacare? Not by insisting that we have a natural right not be coerced into buying things we have no wish to buy, but by pointing out that this scheme of national medical care is virtually bound to produce a scheme of rationing, as it has produced that rationing in Britain and Canada, denying medical care to people now entirely reliant on the government for their care. The serious question then is whether this denial to people of the means to preserve their own lives, with means quite legitimate, touches the ground of natural rights.

The hidrerance to making that kind of argument:

There has been no want of examples of conservative judges finding it necessary to move beyond the text of the Constitution in explaining what they think various provisions in the Constitution really mean (as in the right of the people “to keep and bear arms”). But the melancholy point is that the conservative judges have struck for so long now the posture of skepticism over moral reasoning outside the text that they seem to have come full circle in converging with their liberal opposites: They too profess now the most serious doubt that there are real moral truths that reason can discern, truths that can be recognized as true even across the divide that separates liberals and conservatives.

A light to provide the way:

One redeeming path of rescue for the conservatives may have been found, quite without planning, in the recent briefs against Obamacare. The judges in the Eleventh Circuit had the chance to draw on the persuasive brief written by Gregory Katsas, an accomplished young lawyer who directed the late Bush administration’s litigation in its civil cases. His brief was sharp and pointed in many ways, but in one part it drew upon the reasoning I have identified with natural law. He drew upon an argument made by Daniel Webster and John Marshall in 1819 in the famous case of Dartmouth College v. Woodward: Imposing on people a contract they do not want would be quite as wrong as dissolving, without their consent, a contract they had knowingly made.

         [...]

For the judges, and for conservative lawyers looking on, he was playing the game correctly: He finally seemed to find a location in the text of the Constitution for the right he was invoking. But what a detached philosopher would have to point out here is that it wasn’t the Tenth Amendment, or anything else in the text, that was doing the heavy lifting. The Constitution was brought in only after the natural law had been engaged to explain, as only the natural law could, the deep wrongs and rights of the matter.

Please take some time to read the whole thing.