Column on Is Health Care “Reform” Constitutional

Is Health Care Reform Constitutional?

Tibor R. Machan

On this occasion I wish to address some of Dean Erwin Chemerinsky’s
points made in an article he wrote for the December 2009 edition of Saturday Night magazine, in a guest
column title "The Constitution and Health Care Reform," one that defends the constitutionality of health care
"reforms" currently under way.

     Before I begin I wish to enter a protest about calling the health
care policies being advocated by President Obama and the Democratic
leadership in Congress reforms.  In my view they are not any kind of
reforms, bits of adjustment here and there, of the approach Americans
take to to securing health care and health insurance for themselves. 
It is rather a major, even revolutionary, change because while in the
past some of health care (Medicare and local county hospital policies)
has had government involvement, this time the objective is to establish
what is called "a public option," meaning a form of health care that is
provided by the federal government, just as, say, the Interstate
Highway system is provided by the federal government.
But what about Dean Erwin Chemerinsky’s major points in this piece?
First, though, it should be noted that while the dean comes with
credentials, this should not mislead readers to think that equally well
credentialed American constitutional law professors do not disagree
with him.  For example, the
University of Chicago Law School’s Professor Richard Epstein takes a
diametrically opposed view on the topic. He has published articles and
books critical of government regulations of all parts of American
society and makes a powerful case that such regulations are indeed
unconstitutional. He has even defended the highly controversial idea
that anti-discrimination laws violate individual rights (to, for
example, freedom of association).

       Second, Dean Chemerisnky’s argument assumes that the interstate commerce clause authorized the federal congress to regulate–that
to say, aggressively interfere with–commerce (among the several
states).  Yet, arguably what that clause did is to authorize Congress
to regularize
such commerce, meaning, to abolish tariffs and duties that had been
imposed by the colonies prior to the creation of the union.  What
was authorized to do, then, is to establish a free market in the United
States of America not to obstruct it. Not that this is a popular view
among constitutional scholars but we aren’t discussing what is popular
or not but what makes the best sense, objectively, including in the
light of American political and legal history.  After all, for a long
time the constitutional treatment of African Americans followed
precedents that eventually were overturned because they were deemed to
be grossly unjust.  Well, the kind of welfare statism advocated by Dean
Chemerinsky may well be similarly unjust, given how aggressively it
promotes violating the private property rights of American citizens.  I
am not complaining of the dean’s embrace of such views, though I object
to them, but I protest his assertion that welfare statism is sanctioned
by the U. S. Constitution and the political philosophy of the American

       Third, contrary to what the dean implies, the Ninth Amendment to
the U. S. Constitution makes clear
that there are unenumerated rights–ones not listed in that
document–which citizens also have.  Recent rulings concerning the use
of contraception and engaging in sodomy have relied on this reading.
And that is, of course, as it must be in light of the political
tradition that underlies the Constitution, one in which one’s rights,
basic and derivative, are pre-legal, with the law resting on them not
the other way around.  Since we have many rights by virtue of our human
nature, the Ninth Amendment makes eminently good sense.

       Fourth, and more generally, in a free country citizens may never
be placed into involuntary servitude to their fellows as this health
care reform movement intends to do.  It makes no difference about the
precedence–again, many precedents do not deserve to be followed and
those that support a confiscatory, intrusive welfare state could well
be among them.

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