John Marshall and the Commerce Clause (and the Ongoing PPACA Argument)

Yet again: to the Commerce Clause!

As the PPACA makes it way through the courts, the debate continues (and will continue) until SCOTUS weighs in and rules.  Doug Mataconis’ post yesterday inspired two different thoughts that require two posts to address.  This is the first, which really attempts to address, again, the Commerce Clause and the activity/inactivity issue.  The second will address the slippery slope arguments that keep emerging (often, oddly enough, having to do with broccoli).

My own position on these issues has solidified over time as I have given it quite a bit of thought.  I cannot see how the general policy arena in question does not fit under the Commerce Clause nor do I see how the choice not to buy insurance is inaction given that, well, an active choice has been made.

As such, here, again, is the The Commerce Clause of the United States Constitution (Article 1, Section 8), which states:

The Congress shall have Power…

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The key questions for right now are: does “Commerce” encompass health care and does that category of commerce exist amongst the states?

Writing for a 6-0 majority in Gibbons v. Ogden (1824), John Marshall wrote the following about the Commerce Clause of the United States Constitution:

What is this power?

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.

Here’s the deal (as I have written at least twice before):  I can see no argument for stating that health care, including how it is is paid for (which includes insurance) is not “Commerce…among the several States.”  As such, I can see no argument that the Congress does not have the power to, using Marshall’s words, “prescribe the rule by which commerce is the be governed” in this situation.  This is the same basic reasoning that lead former Reagan Solicitor General Charles Fired to likewise conclude the constitutionality of the individual mandate.

Marshall, by the way, rightly falls in the “Founders” category.  That fact does not make him correct, but it does blunt the notion that an expansive interpretation of the Commerce Clause is a some newfangled thing invented by modern liberals.

This leaves only the activity/inactivity issue that I recently wrote about here and the Doug was concerned about his post about the most recent court ruling on the matter.  Now, I obviously disagree with Doug, as he sees the individual mandate as “eviscerating ” the Constitution (but again, see above) and he find it “quite shocking” that Judge Kessler, in upholding the mandate, and sees the choice to not buy health insurance as redefining thoughts as actions.  However, not only do I not read the excerpt provided in his post in that fashion, I concur with Judge Kessler that the choice not to buy health insurance is an action insofar as that choice has broader implications that go beyond the individual making that choice.  As I have stated before:  choosing not to buy insurance is not a null act devoid of consequences (or of costs to fellow citizens).  Further, a person cannot, in reality, opt out of the health care system, given the risk of illness and injury that is inherent to living.

I have yet to see a compelling argument as to why a) this area of policy does not fall under the Commerce Clause (Doug asserts that “Strictly construed the Commerce Clause would not seem to be that broad of a grant of power” but, to me, strictly construed, it is a very broad granting of power because “commerce” is a vast category) nor have I see a compelling argument that b) choosing not to buy insurance is not an action (which makes the whole activity/inactivity argument specious).

Now, that is not to say that the logic should require a person to like the policy.  One can prefer that the policy not go into effect for any number of reasons (cost, efficacy, etc.).  I just don’t see the Commerce Clause argument as actually being logically sound.  Rather, I see people who don’t want the policy to go forward being forced to make the Commerce Clause argument, because that is the only tool left in the political arsenal since the legislation has already been passed.

There is a grand irony in this debate that is worth noting:  the people most vehemently opposed to the individual mandate almost certainly have insurance already and therefore are not going to be forced to do anything.  Instead, the opponents are opposed to the individual mandate most likely due to either a philosophical objection to the government being further involved in health care and/or they fear that they will be asked to foot the bill  for the PPACA and whatever may come next by having their taxes raised.

To conclude I return to two basic questions:

1)  How is health care not commerce among the states?

2)  How is not buying insurance a null act (i.e., not an action with actual consequences beyond yourself)?

FILED UNDER: Health Care, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Steven,

    It’s not the individual mandate per se that I called “eviscerating” the Constitution, but the reason that Judge Kessler used to get there and specifically her argument that mere mental activity could be subject to the Federal Commerce Power. After reviewing the opinions of Judge Moon and the Michigan Judge who also upheld the ACA’s mandate,her reasoning goes far beyond where they went and constitutes, I believe, a dangerous road to travel.

    And, finally, as I said to Alex, if Kessler is right then there are no limits on the power of Congress at all. That conclusions is completely at odds with the history of the document’s drafting and the writings of the Founders themselves, with the exception of Hamilton who proposed a federal structure that was soundly rejected by the delegates at the 1787 Convention.

  2. if Kessler is right then there are no limits on the power of Congress at all

    I plan to come back to that–indeed, I originally started to deal with that one first (and have half a post written).

    That conclusions is completely at odds with the history of the document’s drafting and the writings of the Founders themselves, with the exception of Hamilton who proposed a federal structure that was soundly rejected by the delegates at the 1787 Convention.

    You are going to have to elaborate your argument here. I can guess where you are coming from, but the assertion itself is unclear.

    And not to be pedantic: but I still don’t see how this precludes health care from being part of “commerce” or why not buying insurances isn’t an action.

  3. Steven,

    This is probably something best dealt with in another post……more work for me !

  4. I think the main argument against this reading is that (at least in terms of a pre-New Deal reading of the commerce clause) for commerce to be interstate commerce the actual commercial transaction would have to take place across state lines. Health care is a service provided in a specific location within a state, not something like a ferry or transportation service that crosses state lines (which of course was what was at issue in Gibbons). And until the 1930s courts did not seriously entertain the idea that interstate commerce was more than trade and shipment of material goods across state lines (rather than any indirect effects of such transactions); e.g. working conditions in a factory couldn’t be regulated by the federal government under the commerce power even if its inputs and outputs crossed state lines.*

    A post-Wickard reading of the commerce clause allows pretty much anything (except for whatever weird idiosyncratic exceptions 5 members of the Supreme Court justify; for example, the Court’s failure to apply the Civil Rights Act to encompass private membership clubs in the 1960s, or the 1990s cases like Lopez) to be regulated as long as some butterfly effect on the national economy can be conjectured to take place. I don’t think Marshall ever made such a wide reading of “commerce,” which essentially makes the commerce power equivalent to the police power (and perhaps even beyond it; I’m not sure a state could constitutionally compel all private citizens to give money to a private entity or be penalized by the state under the police power), although I’d be happy to be corrected.

    That said I think single-payer accompanied by a payroll or income tax (or any other tax that isn’t a malapportioned-capitation, or any combination thereof) would be a clearly constitutional exercise of the spending power. And I think the federal government could constitutionally require any business that accepts federal funds directly or indirectly (via states etc.) to provide health insurance. The federal government could also penalize states that failed to implement some form of universal health care system with substantial cuts in their share of Medicaid and other public assistance programs under the SD v. Dole precedent. I even think the federal government could restructure the non-coverage penalty as a baseline annual head tax that is offset by a refundable income tax credit (I don’t think this would run afoul of the apportionment requirement for direct taxes as long as the entire resident population was subject to it), collected simultaneously with the income tax, and it would be constitutional.

    * Regulation of factories etc by state governments was sometimes, but not always, frustrated by contract clause arguments; the Lochner case, for example, which Alex brought up as an example a while back, was a contract clause case that had nothing to do with the commerce clause. And the Supremes didn’t always take anti-regulation-by-states decisions (in fact, there were contrary rulings the same term, if I recall correctly).

  5. Bob_In_Zion says:

    I guess my beef with your position is fairly simple. Health care isn’t an “interstate” commerce issue, as current law, and the “Obamacare” act both still require that health insurance be bought in the state you live in.

    While there are out of state effects caused on the federal system, that is due to a law (Medic aid) which is also administered by the states. The Feds involvement in it is only funding, and none of the laws require them to fund program, in fact they change funding levels on it as often as some teenagers change socks.

    I will admit I’m biased, I’ve spent the majority of my life living with government managed health care, and I wouldn’t wish it on anyone, so I hope this dies.

  6. PD Shaw says:

    My opinion, which probably doesn’t amount to a hill of beans, is:

    (1) Healthcare is a matter of interstate commerce;
    (2) The individual mandate was “necessary and proper” to regulate healthcare.

  7. Alex Knapp says:

    Chris,

    It’s worth noting that John Marshall stated in Gibbons that any internal activity that affected interstate commerce would be within the scope of the Commerce Clause.

    And yes, I was wrong when I mentioned Lochner. I was thinking of U.S. v. E.C. Knight.

  8. @Chris:

    While one may receive one’s health care at a particular locale, the overall health care industry is clearly national in scope, whether we are talking about regulation (e.g., the FDA) or licensing (e.g, the AMA) and so forth. There are, further, any number of health insurance companies, owners of hospitals, providers of health care products, etc, that operate in more than one state.

    Does all of this not sum to health care as being interstate commerce?

  9. In order to conduct (or not conduct) some activity which may influence interstate commerce I find it necessary to breathe. Is breathing therefore subject to regulation under the commerce clause?

  10. I’m still waiting for someone who advocates the “the commerce clause gives the federal government the authority to pretty much do whatever it wants” position to explain to me how this fits within the founding fathers’ idea of limted government with enumerated powers, or at least have the courage to admit that they don’t give a damn about that old relic of a concept anymore. Perhaps I’m going a little too far to further infer that it really is nothing more than about the acquisition and exercise of power any more, but I’m not sure.

  11. In order to conduct (or not conduct) some activity which may influence interstate commerce I find it necessary to breathe. Is breathing therefore subject to regulation under the commerce clause

    The thing about statement like this is that they are not an argument. Further, they are specifically not an argument about the IM.

    I’m still waiting for someone who advocates the “the commerce clause gives the federal government the authority to pretty much do whatever it wants” position to explain to me how this fits within the founding fathers’ idea of limted government with enumerated powers, or at least have the courage to admit that they don’t give a damn about that old relic of a concept anymore

    I have some plans along these lines, although perhaps not in the way you would (and almost certainly not to your satisfaction, I am guessing 🙂

  12. Dr. Taylor, I freely admit it isn’t an argument. It is a question generated by taking the words used to justify IM and following them to a logical conclusion. Why isn’t it a valid question?

    I look forward to reading your explication and have no expectation or desire for it to be done to placate me. Unlike so many of the caricatures used by others to ridicule me here I don’t lay claim to having a lot of answers, only a lot of questions.

  13. Matt B says:

    I’m still waiting for someone who advocates the “the commerce clause gives the federal government the authority to pretty much do whatever it wants” position to explain to me how this fits within the founding fathers’ idea of limted government with enumerated powers, or at least have the courage to admit that they don’t give a damn about that old relic of a concept anymore.

    This is the crux of a much larger issue (and tension at the core of a number of current contradictions). I think it would be all but impossible for the “founding fathers” to imagine the degree to which businesses have come to function on both National (interstate) and international levels.

    Again, this is similar to Adam Smith’s so-called “blind spot” on industrialization — in general it just didn’t exist when he was writing (or at least not beyond it’s proto-form).

    At best the founders had the East India company as a model. And that was a significantly different form.

    This is (at the risk of mashing Smith and Marx) the radical innovative aspect of Capital/Technology. It can scale so fast that its essentially becomes a new kind of business. So, like Smith cannot write about technology/industrialization, the founders couldn’t have imagined the possibility of this sort of interstate conglomerate (or our far more mobile lives).

    To pretend that the Founders thought about this sort of possibility and wrote the Constitution accordingly, is a really big stretch. It doesn’t mean that we throw their writings out, but looking for a simple “here’s th black and white founders rules for handling this” is a mistake.

  14. I think it would be all but impossible for the “founding fathers” to imagine the degree to which businesses have come to function on both National (interstate) and international levels.

    I think that this is profoundly important point that is usually absent from most considerations of these issues.

    As I have said before, and need to say more often: the industrial revolution and its progeny (i.e., in terms of economic and technological changes) have changed governance in ways that the Founders would never have imagined and those changes are at the heart of many of these debates about what government should and should not be doing.

  15. progcivlib says:

    Because, Charles Austen, not all of the founders believed in a strictly limited federal government with enumerated powers. Some believed in a stronger central government. You know.. the federalists. The arguments we’re having today, they were having back then. We’re just continuing on in the same tradition. We’re not special – this crap has been being fought over for close to 250 years now.

  16. PD Shaw says:

    I think the conceptual gutting of the interstate commerce clause preceded the Industrial Revolution.

    The colonies were essentially maintained as extraction economies for the benefit of British trade. There were few connections btw/ them. Prior to the First Continental Congress, there were really no inter-colony organizations, except for perhaps the Presbyterians.

    During the antebellum era, the states experienced transportation and communication revolutions that led to the formation of a national market economy. Small government Democrats fought these developments (and a national banking system) not only due to a faith in limited government and Jeffersonian self-sufficiency, but also because their expansion had the effect of increasing the power of the federal government.

    In 1788, what was interstate commerce was very little. Today, it’s pretty much everything.

  17. In 1788, what was interstate commerce was very little. Today, it’s pretty much everything.

    Indeed.

  18. Hmm…, I think the principles of self government don’t have a damn thing to do with new forms of business, capital formation, technology or whether the founding fathers all agreed on some concept. I also would think that it clear that I didn’t invent the words “limited government with enumerated powers” as a way to be a troll. Federalism? Really? Federalism is mostly honored in the breach these days and suggesting it be taken more seriously gets you accused of all manner of nefarious intentions.

    The more fundamental issue as I see it right now is how fed up an increasingly large number of people are by the progressive ideal of a cloistered, self-selecting group of experts, dare I say elites, running our affairs and gladly sacrificing the liberty of others for what they deem appropriate, when their track record hasn’t been much to brag about. Tyranny (the arbitrary or unrestrained exercise of power) is still tyranny, even if you think it is for my own good or the good of others.

  19. Perhaps it is also important to remember why the founders believed there was a need for the commerce clause in our federal republic.

  20. Perhaps it is also important to remember why the founders believed there was a need for the commerce clause in our federal republic.

    Indeed: it was to create a greater ability of the central government to control economic activity because under the Article of Confederation (where each state basically had total control over commerce) the national economy was a mess.

  21. progcivlib says:

    I’m sorry but you don’t get to lecture about signing away liberties till you’re protesting provisions in the patriot act just as loudly as your protesting a minor regulation of the health care market.

  22. sam says:

    @Doug

    It’s not the individual mandate per se that I called “eviscerating” the Constitution, but the reason that Judge Kessler used to get there and specifically her argument that mere mental activity could be subject to the Federal Commerce Power.

    And as I pointed out yesterday, insofar as this is meant to refer to the “activity/inactivity” distinction, nobody believes this is beyond the commerce power if a business nexus can be established, e.g, the mandated purchase of flood insurance, etc. — the law says you cannot choose not to purchase the insurance if the house is on a flood plain and the mortgage is federally-backed. How is that not regulating choice? Probably the most pertinent example, pertinent in more ways than one to this argument, is the Emergency Medical Treatment and Active Labor Act, which says, in effect, any hospital that accepts Medicaid or Medicare payments cannot refuse to treat someone who lacks insurance or means to pay. Here, the hospitals’ druthers are being regulated.

    If one want to hare off down the activity/inactivity path, one has to show that someone’s choice not to purchase health insurance has no effect on the health care system, that there is no business nexus involving the choice to forgo health insurance.

  23. Steve Verdon says:

    It’s worth noting that John Marshall stated in Gibbons that any internal activity that affected interstate commerce would be within the scope of the Commerce Clause.

    Then everything impacts interstate commerce. If you start a garden, it impacts interstate commerce since you are not buying vegetables in your state, which in turn can impact the price in other states via the market mechanism.

    Even if you sit in your house and watch a DVD you bought several years ago tonight vs. going to a movie that impacts interstate commerce and based on my reading of this conversation such an activity is well within the scope of Congress to regulate and there is pretty much no limit on how that regulation might take shape. Even if you decide to reduce your overall spending in general Congress can, based on reading people like Alex and Steven, pass legislation mandating that you don’t reduce spending levels.

    The power Congress has under the Commerce Clause seems to be quite vast.

  24. progcivlib – bullshit, I can say what I want about whatever I want without having your exalted permission. That tyranny stuff comes pretty easy for you, doesn’t it? As it happens, if you read around I think you might see that I have criticized the Patriot Act as well.

  25. Dr. Taylor, is control the right word?

  26. Steve Verdon says:

    progcivlib – bullshit, I can say what I want about whatever I want without having your exalted permission.

    Maybe not if it can be shown to impacting interstate commerce….

  27. sam says:

    @Steve Verdon

    “If you start a garden, it impacts interstate commerce since you are not buying vegetables in your state, which in turn can impact the price in other states via the market mechanism”

    See, Gonzales v. Raich, esp. Scalia concurrence.

  28. Steve Verdon says:

    In order to conduct (or not conduct) some activity which may influence interstate commerce I find it necessary to breathe. Is breathing therefore subject to regulation under the commerce clause?

    If you can show that there is an impact on interstate commerce yes. Maybe via spreading things like the flu and the common cold. People in our state might buy more various treatments for the symptoms, call in sick from work, you yourself might get sick and not go to work which would undoubtedly impact interstate commerce. So, yes, it very well could be regulated someday. Maybe you’ll have to wear a mask if you are sick with the common cold or flu, be required to stay home 72 hours, or wear a mask all the time outside your house (and maybe inside) to cut down on your chance of getting sick and/or spreading the contagion. Think of all the extra hours of work and output we’ll get…and think of the children!!

  29. Steve Verdon says:

    See, Gonzales v. Raich, esp. Scalia concurrence.

    Yes, I know about that one. As I said, there is no limit. I was partially kidding with the breathing/mask/flu comment above….but only partially. In 20 years it could be all the rage as health care costs continue to spiral out of control. And they’ll look back and point to these kinds of decisions.

  30. Dave Schuler says:

    In my view neither healthcare nor health insurance are interstate commerce but the subject is moot. The Constitution says whatever a majority of Supreme Court justices say it does.

  31. sam says:

    BTW, I find the historical irony amusing. It was concerns about commerce, and the clamoring of business interests, that led to the abandoning of the Articles of Confederation in favor of the Constitution, Commerce Clause especially. I suppose some of you guys will take this a proof positive of the adage, “Watch out for what you wish for. You might get it.”

  32. Steve Verdon says:

    In my view neither healthcare nor health insurance are interstate commerce but the subject is moot. The Constitution says whatever a majority of Supreme Court justices say it does.

    Pretty much. And amusingly enough, none of this really addresses the real point….out of control health care costs. The ACA will further entrench a severely broken system and make it even harder to get costs under control. Down the road the government will want to claim even more power to solve the mess…but making the mess bigger is a great way to lay claim to even more power. So…in the end, none of this matters.

    Have a good weekend folks…soon that will probably be regulated too.

  33. sam says:

    @Dave

    “In my view neither healthcare nor health insurance are interstate commerce ”

    Well, I know for a fact that the blood I had drawn on Tuesday will be sent out-of-state for analysis, and we just got the remainder bill from the imaging company for my wife’s mammogram from an out-of-state company. How does this not make health care, or the health care system, interstate?

  34. @Steve V.:

    Yes, Congress’ powers under the commerce clause are vast, because commerce is vast arena.

    I agree, btw, that a major failing of the PPACA is that it does not fix the cost problem.

    @Dave S.:

    I would be interested in hearing why you think that health care doesn’t fall under interstate commerce.

    @Charles:

    “Control” in the sense of “control over policy” (e.g., trade practices).

  35. PD Shaw says:

    charles:

    a cloistered, self-selecting group of experts, dare I say elites, running our affairs

    That would be judges?

    Part of my ambivalence about this last, best hope to protect us against tyranny is that “interstate commerce” is not a legal term of art. You, I and everybody on this thread and more have a valid p.o.v. on what it means. There are terms in the Constitution which were drafted for lawyers (due process, double jeopardy), I don’t think this is one of them.

  36. PD Shaw, I wasn’t thinking of judges so much as our political and policy elites these days, but now that you mention it the legal profession also has a problem here that has been noted by others before. It’s kind of like how university faculties skew to the left. Those within the group sometimes rationalize the lack of diversity as being driven by their being smarter or something along those lines, while those outside frequently have other explanations, but every time someone looks at it seriously, they almost always find a self-selection bias amongst the causes. I’m fairly sure this topic has been covered on OTB a few times.

  37. @Charles:

    It sure is a good thing that elites didn’t write our constitution!

  38. Dr. Taylor, that’s a good bit of snark, but I try to be careful about my criticism of elites. Elitism per se is not the problem, and it is unlikely that anyone not part of the elite in the 18th century could possibly have written our founding documents. For instance, do I want the justices on the Supreme Court to be the elites within the legal profession? Of course. But would I want to open a constitutional convention now and limit attendees to the law faculty at Yale to write a new constitution? Well, no, even though are undoubtedly elite. In the last two centuries the bell curve has become quite a bit flatter, though it still exists and the tails are just as long, if not longer. But honestly, that’s not really my point, and I apologize for wandering about a bit.

    It isn’t the elitism that bothers me as much as the increasing insularity of the elitism around core concepts that no longer seem to include liberty.

  39. Oh, and I think I’m much more of an elitist than a populist, if that matters. But I lack the gene that makes me want to force others to do what I think is best for them and I haven’t got a view of the malleability of human nature that deludes me into thinking I can change it for the better,

  40. @Charles:

    A little snark, yes, but for a purpose. Even if we had a convention today, it would still be made up of elites (a definition that goes well beyond the Yale faculty).

    It isn’t the elitism that bothers me as much as the increasing insularity of the elitism around core concepts that no longer seem to include liberty.

    I must confess that I find that to be an assertion without foundation (or perhaps I simply don’t understand what you are asserting).

  41. But I lack the gene that makes me want to force others to do what I think is best for them and I haven’t got a view of the malleability of human nature that deludes me into thinking I can change it for the better,

    I suspect you have more of both that you care to admit. Indeed, it is impossible to revere the Founders of this country and not believe at least the latter part of your statement.

    And, in all honesty, having any political preferences whatsoever means you have at least a little of the former as well.

  42. To further the previous comment: the Founders were hardly conservatives.

  43. tom p says:

    wow… I read a post and 36 comments ant the only thing I have learned is that apparently, nobody knows what they are talking about. I have my own point of veiw, and I have certain things I want the Constitution to say, but when I read a post entitled: “John Marshall and the Commerce Clause”, as a non-lawyer I would like to think there is some kind of consensus about these decisions….

    Apparently not.

    Question: What is the law (as of this point in time)? Never mind what you want the law to be, WHAT IS THE LAW…. right here and now?

  44. Dr. Taylor, of course, it’s difficult to think of anyone starting a revolution as a conservative. I do believe the fouders weren’t any one thing in particular and covered a pretty wide selection of the beliefs of their time, yet the ultimately produced something that was new on Earth and gave us a legacy for a foundation based on limiting government moreso than limiting its citizens.

    My general assessment, is that progressivism — which I regard as dominant in elite political and policy circles today — doesn’t have liberty, as I understand the term, very high on its list of first principles. Happy to be proven wrong on those assertions. Hope that helps, not, of course, that you will agree with my assertions.

  45. tom p, as Dave Schuler said earlier, whatever a majority of the Supreme Court justices says it means. I believe our ability to interpret the US Constitution as laymen under any kind of a common cultural understanding has been severely comprimised.

  46. Or compromised. Whatever.

  47. Agreed about various beliefs of the Founders.

    However, the following, or the converse thereof, is pretty much what they believed:

    But I lack the gene that makes me want to force others to do what I think is best for them and I haven’t got a view of the malleability of human nature that deludes me into thinking I can change it for the better,

    They were liberals at a minimum (indeed, progressive for their time) and some were even radicals.

  48. Of course, such terms are relative to time and place in many ways.

  49. Steve Verdon says:

    Steven,

    I know the commerce is vast hence the vast powers under the commerce clause. While I suppose that from a legal stance this is all okay and cool, but I tend to take a different view….the State as the monopolist on the use of violence, coercion and force, should be viewed skeptically and even with suspicion when it wants more and more power. In reading this comment thread I don’t get that impression from very many. Most seem just fine with that. As one commenter noted…be careful what you wish for.

  50. An Interested Party says:

    They were liberals at a minimum (indeed, progressive for their time) and some were even radicals.

    Exactly right…I find it amusing when conservatives try to claim the Founding Fathers as their own, not that liberals don’t also play that game…but it would be interesting to see how many of today’s conservatives would have been yesterday’s Loyalists…to echo what you wrote, the Founding Fathers certainly weren’t conservatives…

  51. anjin-san says:

    > I’m sorry but you don’t get to lecture about signing away liberties till you’re protesting provisions in the patriot act just as loudly as your protesting a minor regulation of the health care market.

    But, but, but, but. Obama! Tyranny! Taking my freedoms! It’s later than you think!

  52. Without geting too deeply into their religious beliefs, their were certainly some remnants of Puritanism in some, if not many, of the founders which I think would account for their desire to improve men. Howvever, I think (hope?) they did not delude themselves into thinking that they were the masters of the universe who were going to pull that off, but depended on divine providence and the people themselves to do it. (Aside, I had the word radical in mind when I started typing, but it didn’t make it in the post. I wish it had.)

    Sorry to get all cliche and all but I am reminded of Galadriel turning down the Sauron’s ring. How many of our leaders would do that today? Even if they knew how it would turn out. And though I disclaimed populism few things bother me more than the “some are more equal than others” results that we get from our leaders across the spectrum today. And I’ve said before that I think of myself as a liberal, or what used to pass for one.

  53. Thanks anjin-san, whenever I start to worry about my bearings you do a great job of reminding me just how far from the bottom I am.

  54. Steve Verdon, perhaps beating the dead horse one more time, now that the EPA has categorized carbon dioxide as a pollutant, what if I exhale across state lines?

  55. anjin-san says:

    > My general assessment, is that progressivism — which I regard as dominant in elite political and policy circles today — doesn’t have liberty, as I understand the term, very high on its list of first principles

    As opposed to conservatives, who cheered Bush on as he set up domestic spying, pressured businesses to give up customer information, used endless signing statements to circumvent the will of Congress and tried to put Habeus Corpus to sleep?

  56. @Charles:

    You originally said:

    I haven’t got a view of the malleability of human nature that deludes me into thinking I can change it for the better,

    Clearly, the Founders did believe things could be changed for the better (hence, liberal, if not progressive with Jefferson and Paine occasionally waxing into radical).

    However, you move the goalposts/engage in hyperbole when you say things like:

    they did not delude themselves into thinking that they were the masters of the universe who were going to pull that off, but depended on divine providence and the people themselves to do it

    Clearly they did not, but nor do modern liberal (or even the dreaded “progs”). Certainly the PPACA, individual mandate and all, does not fall into “masters of the universe” territory.

  57. anjin-san says:

    > what if I exhale across state lines?

    Well, as they say, some people hit a bottom, then just keep digging. Some even use a backhoe to aid in the race to the bottom.

  58. Dr. Taylor, not sure how to respond exactly but I think you subtly changed my meaning. There is a significant difference between thinking things can be better (by basically unleashing human potential and inhibiting those who thinks rights come from governments, privileges sure, but not rights) and thinking that you are going to make it happen by turning the knobs just so and blaming the people when they don’t according to your grand designs. Ok, no doubt I go too far, but I’m not sure how else to get the point across.

    I have elsewhere expressed some reservations about Thomas Paine, and there’s seemingly something for everyone to cheer and jeer when it comes to Jefferson. Were these two men and others liberal for their time? Absolutely. I don’t think progressivism as we know it today was really much of an influence at the time. There were giants in those days — typically what we used to call renaissance men — today, not so much. But the average man is a lot taller now than then.

    It kind of goes without saying, but I fear the progs much more than you and have trouble sometimes distinguishing them from the much more radical folks that I perhaps exageratingly refer to when it comes to making men better, because I think the end game is much the same.

    Anyway, thanks for taking the time to respond. I find it flattering that anyone serious bothers.

  59. anjin-san, even your analogies suck.

  60. Dr. Taylor, one last question to help clarify, did you mean to say that the founders thought they were going to change human nature? That’s how I took your response to the blurb you requoted, but I don’t think that’s right.

  61. anjin-san says:

    > anjin-san, even your analogies suck.

    Well then run along and get back to telling us how only people who agree with you cherish liberty. It’s important work.

  62. @Charles:

    No, not change human nature. I misread what you originally wrote. I think that they did think that that could improve human circumstances via applied reason.

  63. anjin-san, thanks for taking the time to respond. You are an inspiration for us all.

  64. anjin-san says:

    Well Charles, I have some groovy new speakers, I have Iron & Wine on, and I am looking for some old Mullard 6922 tubes, preferably late 50s or early 60s, and that leaves me with not a lot of bandwidth for you. When you have something besides Fox News bromides about liberty, tyranny, and the republic, be sure to let me know. Because as soon as I hear that stuff, I start getting real sleepy.

  65. anjin-san says:

    In the spirit of George Harrison’s birthday, let’s set politics aside for the evening. Here is what I am listening to on this very cold and even snowy bay area evening:

    http://www.youtube.com/watch?v=90cZMj0Pkm4

    http://www.youtube.com/watch?v=Qf7kUd4awnw

    http://www.artistdirect.com/video/the-innocence-mission-wonder-of-birds/1142

    Perhaps you will even find one of them inspiring 🙂

  66. Bill says:

    You say in this post, and refer to 2 others:

    I can see no argument for stating that health care, including how it is is paid for (which includes insurance) is not “Commerce…among the several States.”

    When I buy my insurance within my state, and/or use the services of a doctor or hospital in my state, my ‘commerce’ stays within my state. Can you elaborate on how this is directly “commerce among the States” in your view?

  67. anjin-san says:

    > When I buy my insurance within my state, and/or use the services of a doctor or hospital in my state, my ‘commerce’ stays within my state.

    Probably not. Are you a member of a WellPoint affiliated plan? Nearly 10% of Americans are. They operate out of Indiana. Do you live there? You pretty much can’t do business of any kind with a major corporation and claim your commerce is localized within a single state.

  68. When I buy my insurance within my state, and/or use the services of a doctor or hospital in my state, my ‘commerce’ stays within my state. Can you elaborate on how this is directly “commerce among the States” in your view?

    One simple example: I have, for years now, received my prescription drugs via a mail order pharmacy located in Boulder, CO (I live in Alabama) and recently my insurance switched to a pharmacy located in Dallas.

    My insurance is through Blue Cross/Blue Shield, which is not solely an Alabama company.

    Also: The FDA and the fact that doctors receive their licenses via a national mechanism, not state-based ones.

  69. @Alex (a long way up): I think what Marshall probably had in mind in terms of internal activities that might affect interstate commerce would be what today we’d call “non-tariff trade barriers” (for example, discrimination in who could use ports to engage in interstate trade in favor of in-state businesses over out-of-state businesses), and perhaps even going as far as the “dormant commerce clause” doctrine. I don’t think that would have extended to any and all activities that might affect the national economy, however tangentially, even if the specific activity in question never crossed a state line in a reasonably proximate period of time. (i.e. the “interstateness” of commerce in goods would correspond to the shipment period between production and distributor; once the goods were in a state “for good” they’d no longer be in interstate commerce.)

    Now, granted, it’s hard to know exactly what Marshall would have done with something like an overarching national regulation of an economic sector since Congress wasn’t really inclined to pass such legislation in the first place.

    In the end this all amounts to con law squabbling. The reality is that the public (and many of the states, for that matter) wants Congress to act as if it has police powers and nationalize policy on virtually every dimension, and as Congress expands into those areas the courts will handwave some justification from the constitution why this further frontier still doesn’t give Congress unfettered police powers while not actually imposing any real limits on them (just as Congress’ future ratcheting up of the copyright period, since it has a long way to go before infinity and thus no longer “limited,” will be permitted). And thus a constitution that was written in the 1780s under the expectation that it would be reasonably interpreted by reasonable men with a similar conception of the universe (not to mention the English language) will further fade into irrelevance, in large part because of a reliance since the 1930s on politicians in robes to reinterpret it rather than politicians in suits changing its text to legitimate the last century’s expansion of federal responsibilities through the amendment process.

  70. Bill says:

    No, not a Wellpoint plan. I live in Georgia, and if I had a Wellpoint plan, it would be with Blue Cross Blue Shield of Georgia. My ‘commerce’ would be with them. The interaction between BCBS GA and the owning company Wellpoint, would be their interstate commerce, not mine.

    Really not trying to split hairs, but in health care in particular (as well as a lot or other businesses), the other party in a local transaction with me in a local business entity. Their partial or total ownership by another entity in another state isn’t directly related to my transaction.

  71. anjin-san says:

    Bill,

    I will just say I think you have a rather quaint view of how business is done in the 21st century and leave it at that.

  72. Bill says:

    Steve-

    Given, purchasing your prescriptions across state lines is interstate, clearly.

    When you transact with BCBS AL, your transaction is in state, right? They may, and probably do, have other transactions with other people outside the state, and those are interstate.

  73. Bill says:

    anjin-san-

    Perhaps. But what you view as a single. monolithic entity is usually made up of a lot of separate legal entities for tax, liability, and regulatory reasons. The original definition of commerce seems to have been the transaction between two parties (buying). Without extending the definition to a chain of transactions, I’m just interested in how this elevates to interstate when the buyer – me- and the seller -the company in my state – are the parties to the commerce transaction.

  74. anjin-san says:

    But what you view as a single. monolithic entity

    Where did I say that? I work for a subsidiary of a subsidiary of a subsidiary of a subsidiary. I have a reasonable idea of how large corporations are structured. But you are fooling yourself if you think all of business you are doing with a provider magically stops at the state line. Do you ever call the customer service 800 number? What state is the call center in? Do you order perscriptions online? What state is their data center in? What state are your payments processed in?

  75. Without extending the definition to a chain of transactions, I’m just interested in how this elevates to interstate when the buyer – me- and the seller -the company in my state – are the parties to the commerce transaction.

    But the question is whether the health care industry engages in interstate commerce, and that would be the issue.

  76. @Chris:

    And thus a constitution that was written in the 1780s under the expectation that it would be reasonably interpreted by reasonable men with a similar conception of the universe (not to mention the English language)

    Of course, this is the issue and it seems to me we have to use the constitution that we have in the universe that we have, although I understand that this is not the way everyone looks at it.

    You do get to the bottom line: this is ultimately a political contest–indeed, it always has been.

  77. Liandro says:

    I’m not going to read through every single comment, so I apologize if I retread. Here are my thoughts.

    1. The health care industry is interstate mainly because laws passed BY CONGRESS force it to be…it is nearly impossible to start up a local practice free of federal entaglements, which is one of the main reasons I left my pre-med studies and instead opened a small business. Congress should not be able to force an entire field to become interstate, then say we now control everything about it. I could same the same to banking and several other fields.

    2. This directly leads into the fact that the federal government interprets any commercial transaction as impacting interstate commerce, just because said transaction COULD HAVE BEEN INTERSTATE COMMERCE. In one supreme court case (if I remember right) grain grown and sold in-state was controllable under the commerce clause because selling it instate, and not interstate, affected interstate commerce. This is a complete perversion of the commerce clause. As Doug has said, under this interpretation any and all actions (or thoughts, or non-choice choices) fall under the power of the federal government. My choosing to grow a garden instead of purchasing vegetables affects interstate commerce, because I chose NOT to buy my tomatoes from Florida. The Constitution is jsut a worthless piece of paper if the feds have the right to come in and confiscate, regulate, or even know about my windowsill tomato plant. Seriously, federalism, limited government, and individual freedom are truly dead as concepts is we grant the federal government that much authority.

    3. Not making a choice, i.e. refusing to buy health insurance, should in no way be considered action in terms of commerce. I’ve seen many arguments detailing how not purchasing health care, or only using it in emergencies, has broad impact on the interstate health care industry. But these impacts are only because of Congress’s own laws…mandating care, mandating certain programs, mandating HMO structures…I could go on. This ties back into my first point…the federal government created the system to work the way it does, and now claims that since the system works the way it does it has the authority to control every aspect of it via the commerce clause.

    4. Globalization, ease of travel, ease of communication, and new technologies have created a very different world then the founders lived in. Some of the things I mentioned above are unavoidable due to this. Given that, we need to have a national discussion on whether we truly should so broaden the scope of federal power the way we have. There is only one way to properly have this discussion…via amending the Constitution. There is a very high bar set by our founders to so dramatically change the nature of federal government, and for far too long we have allowed Presidential or Congressional actions, combined at times with judicial fiat, to replace the amendment process.

    5 The ONLY way such a dramatic shift of power away from individuals, and the various states, towards the federal government, is to amend the Constitution. The Constitution is the highest law in the land; it is a contract between the government and the people. It is the chains that binds and limit the authority of the government so that the states and the people may have maximum freedom. Over time the federal government has chipped away at is chains and broadened its authorities, and it has long-since passed by the amendment. The amendment process would require far too much work, explanation, and openness…and it is far easier for the government to escape its bonds slowly, but steadily, and argue that new steps are such a departure from contemporary powers.

    6. The end result of all the above is that the federal government will have (and already has) massive authorities under it that are never considered unconstitutional only because it has been able to slowly pervert the intended purposes and limitations of it’s authority. Again, as Doug says (and as several members of Congress freely admit on Youtube), there is no practical limit to the authority of the federal government in virtually any issue except political leverage. To be more blunt, there is no law above the federal government, because the Constitution open to any interpretation.

  78. Liandro says:

    No, Steven, the question is whether *I* engage in interstate commerce, because I am the one being punished. If the insurance company does, then regulate the insurance company, but we’ve allowed the degrees of separations between my purchasing activity (or non-activity!!!) to be eroded such that if I do (or don’t do!!!) business with any person or entity that in turn does business across state lines, suddenly I’ve done business across state lines. No, I have not. Secondary or tertiary impact should be no basis for such things, because such impact can be easily traced to any action (or non-action!!!) anywhere, ever.

    I buy vege’s from a distributor. They buy vege’s across state lines. I get regulated because they (and NOT I) engage in interstate commerce. That is nonsense.

  79. Matt B says:

    @Charles (primarily), sorry its taken me a little while to answer a few of your questions from Friday. I’ve been travelling. As far as the troll comment from an earlier thread, let me take that back. I do think you function as a bit of an agent provocateur. That said, being that your open to honest discussion, here goes:

    I think the principles of self government don’t have a damn thing to do with new forms of business, capital formation, technology or whether the founding fathers all agreed on some concept. I also would think that it clear that I didn’t invent the words “limited government with enumerated powers” as a way to be a troll.

    The problem is that every interpretation is, inherently, contextual. It’s bound to the particular moment in socio/cultural history that you do it. We exist in a far more interdependent and inter-state/inter-national commerce space than the founder did. So we MUST take that into account in interpreting their words. It doesn’t make their writing useless, but it does mean that we need to really think about how to contextualize them. That means understand the conditions under which they were writing and the conditions under which we are now operating

    BTW, the FF were doing the exact same interpretive work when they were working with Loche and others in creating the Constitution. I’d guess that few of them made the claim that John Loche would say that they should use his philosophy exactly “as such” in the crafting of the Constitution (or that Loche presupposed the Constitution). Did that make sense?

    I have elsewhere expressed some reservations about Thomas Paine, and there’s seemingly something for everyone to cheer and jeer when it comes to Jefferson. Were these two men and others liberal for their time? Absolutely. I don’t think progressivism as we know it today was really much of an influence at the time.

    Here’s an example of a flaw in your thought process: the move to anachronistically suggest that “progressivism as we know it today” could exist in an era 200+ years removed from now. At best we could argue for its seeds, but no more than that. Likewise, Libertarianism, as we understand it today, couldn’t have existed then either. Which means that everyone is always already interpreting those documents.

    In other words, to say that Jefferson, for example, wouldn’t support progressives as we know them today (I’m extending your argument from above to one possible logical conclusion) is a slight of hand trick — Jefferson couldn’t possible have addressed those arguments in his writings as he was never exposed to them, so it’s easy to say that he wouldn’t support them.

    Which gets to:

    I read a post and 36 comments ant the only thing I have learned is that apparently, nobody knows what they are talking about. I have my own point of veiw, and I have certain things I want the Constitution to say, but when I read a post entitled: “John Marshall and the Commerce Clause”, as a non-lawyer I would like to think there is some kind of consensus about these decisions…. Apparently not.

    Yes and no. There is never 100% consensus. There typically is significant amounts of expert consensus. But as with issues of Global Warming, the 14th Amendment, and Evolution, just because there is expert consensus doesn’t mean people believe it. As expert consensus you don’t agree with is always defeated by the claim of “bias” in the interpretation. Usually those folks call for a strict, originalist interpretation as the only way to get to the “truth.”

    This also gets to the fundamental problem at the heart of many arguments “strict constructionist”/”Originalist” interpretations — that we can somehow interpret without interpreting (putting a contemporary spin on things). The moment we pretend that is possible, we risk doing a lot of damage.

    This is why, for example, in recent replies I keep bringing up the argument that most modern economic texts fundamentally misinterpret Adam Smith’s “Invisible Hand” metaphor. That foundational story has been used, starting in the middle of the twentieth century, to suggest that “free-market capitalism” always will work for the good of the group and the nation — when clearly in Wealth of Nations, that isn’t what Smith is stating. Yet, much of the modern rational for not regulating markets and global expansion was based upon this “originalist” image/metaphor of Smith’s thinking.

    The problem with strict constructionist claims is that they tend to become self-supporting – the finding itself becomes evidence for the finding, because if that new idea didn’t “exist” in the original document, then by the very logic of strict conventionalist thinking the new idea should have been proposed/accepted in the first place.

    So returning to your first question above. The issue isn’t so much what did the Founders mean by

    “limited government with enumerated powers”

    but rather how to execute that in a world filled with large and powerful corporations that operate across national and international borders. In order to do that, one must take a philosophical concept and create laws from it. And that means fundamental acts of interpretation and compromise.

    So at that moment, in interpreting the FF or anyone else, we need to recognize the limits of their writing, seriously consider how the world has changed since then, and then ask how best to apply their frameworks in a world where large corporations (and note that the interpretation of Corporations has also significantly changed since the time of the FF) have reaches and spheres of power that we are still trying to understand.

    Pretending that we can execute “the wishes” of the FF start from the fundamentally flawed assumption that the FF would have specific wishes about, for example, national healthcare.

    And whatever wishes they had were based on a world where people didn’t survive a lot of injuries, where birth rates were no where near this high, and people, of all classes, on average live up to 30 years longer (well into retirement) than in the 1700’s — with medical technologies that can, if not extend life (in any way that the FF would understand it), prevent death for months on end.

    I’m not suggesting they would necessarily nationalize health care. But pretending that they could imagine the circumstance under which we are now operating, and accounted for it in their writings, is a huge mistake (as it immediately imagines that there a specific “right” answer — as opposed to a right process to reach a good answer).

  80. Matt B says:

    @Bill:

    The interaction between BCBS GA and the owning company Wellpoint, would be their interstate commerce, not mine. Really not trying to split hairs, but in health care in particular (as well as a lot or other businesses), the other party in a local transaction with me in a local business entity.

    This is actually a huge part of the difficulty/confusion/need for regulation — the ability for corporations to hold corporations. This is also a largely modern (past 100 year) phenomenon — prior to that time corporations functioned pretty differently.

    The question of the separation between parent and subsidiary is fuzzy at best — and often slips between non-existent/total control and “we only owned a controlling share” depending on the legal state/lawsuit in play. For example the Bhopol disaster, it was claimed was not Union Carbide’s Fault, but rather Carbide India. Or Gulf Horizon, BP America was at fault but not BP international (the holding company). In both cases however, it’s clear that the holding company both had a significant amount of control over who was in charge at the subsidiary and also in the financial demands made upon the subsidiary to reduce costs (or in the case of Bhopol, install one safety system over another one which was both more expensive and had more fail-safes).

    Or, put it a different way, if we are going to ask what the founders would think about the 14th Amendment, I think its also fair to ask what they would have thought about the 21st century holding corporation and if they would have approved of this sort of construction.

  81. Steve Verdon says:

    Steve Verdon, perhaps beating the dead horse one more time, now that the EPA has categorized carbon dioxide as a pollutant, what if I exhale across state lines?

    Would you shut it and stop giving these guys ideas? Jesus Christ on a pogo stick….

    Seriously, I challenge anyone to come up with an activity that wont impact, in some minor way, interstate commerce.

    How about sex/reproduction? Nope, interstate commerce right there baby! Uhh, sorry no pun intended. After all, are you going to buy all your baby’s needs locally? No, probably not. Will that kid grow up and work only locally? In general, no. So Alex, et. al. should be just fine with regulations on when to procreate.

    I know, Alex will say, “That’s crap,” but the logic is exactly the same.