Right Reason

The newly formed Center for Jurisprudence of Natural Law, a project of the Claremont Institute, has just come out with a new online journal titled Right Reason that is focused on applying natural law reasoning to past Supreme Court cases.  Hadley Arkes, the center's director, has just put out a new essay that examines what should be the line of attack against Obamacare:  that it is violation of the natural rights of the governed.  Here is Hadley on why we should break away from the current cast of argument that is centered on the Commerce Clause:

With the Civil Rights Act of 1964 the government was virtually compelling unwilling vendors to enter into commerce with people of another race with whom they had no wish for commerce. Set against that landmark and the accretions of the past 70 years, it was no longer so momentous to say that the government, under Obamacare, would be forcing us-gasp-to buy a product, medical insurance.

That is, with the new inversions of the Commerce Clause by the Court over the last 70 years, would it truly be remarkable if they somehow find some way to expand that Clause even further?

The Court's most obvious break from reasonable Commerce Clause jurisprudence can be found in Wickard v. Filburn.  In that decision, Justice Robert Jackson found that a farmer cannot grow wheat on his farm for the consumption of himself and his family without being regulated under the Interstate Commerce Clause.  But where did the interstate portion come into play?  Justice Jackson said that if the actions of the farmer were considered in the aggregate, that its effects were multiplied thousands of times over, that that would greatly affect federal policy on agriculture.  And, as Hadley shows us, the same argument could be made of the right to abortion.  Abortion in the aggregate affects 1.3 million lives a year and so it could sensibly be regulated under the Commerce Clause.  But

this argument would not stand a chance of succeeding. For we could speculate with high surety as what our friend Laurence Tribe, at Harvard, would say when faced with this kind of an argument: namely, that the policy that restricts abortion would run counter to a principle that must be firmly embedded in the logic of the Constitution as nearly a first principle of personal freedom. My hunch is that he would offer an argument then that transcends the argument moving in the familiar grooves of the Commerce Clause.

An argument on more firm grounding, or the natural law reasoning on which the Commerce Clause itself rests:

Past the formulas of the Commerce Clause understood and believed mainly by lawyers, there was something elementary that could be understood by ordinary people and caught crisply by Sarah Palin when she saw in this new scheme the immanence of "death panels": She saw, that is, that any system of national care managed by the government would lead, as it has led in all such systems, to schemes of rationing. One way or another there would be a denial to patients of surgeries and treatment, based on budgets drawn in the aggregate. And the denial would not come from an insurance company, chosen by a customer among several companies, and subject to appeals. The denial would come with the powers of law, from an agency that would have little fear of being corrected from above, by higher authorities.