Monday, August 2, 2010

Liberal Sophistry And The End of Freedom

During her confirmation hearings, Elena Kagan was asked whether the Congress has the authority to direct that citizens eat so many fruits and vegetables each day. She first dismissed the idea as a “dumb law” that would not be enforced. When pressed, she could not articulate a meaningful limit to the power of the Federal Government under the Commerce Clause of the Constitution. Clearly she belongs to the school that holds that the Commerce Clause grants Congress plenary power to regulate anything that touches upon commerce between the States. This broad reading underlies much of the economic regulation of the New Deal, portions of Great Society civil rights laws and the recent health care “reform.” Yet the this argument contains a potentially fatal flaw – “commerce between the States” is apparently a term without limits. It applies equally to one state attempting to tax goods imported from another state to the lunch counter owner who does not want to serve Jews or other “infidels” to your choice of health care provider. Each example involves economic choices, and therefore effects commerce. Given the national, if not global, nature of the American economy, it would be difficult to find such a decision that does not involve something that crossed state lines at some time.

What other transactions might fall within the scope of the Commerce Clause? Realistically – anything. Houses use materials that come from across the nation, and consume fuel that generally crosses state lines. Surely Congress has the power to regulate the size and energy consumption of each home. The same analysis applies to your wardrobe. After all, imagine the millions society would save if homes came in standard sizes and designs and we all wore jeans and T shirts (with a Mao jacket for formal occasions, such as the annual August 4 celebrations).

Surely not, you object. My home and my clothing are part of my self expression and must be protected. Must they? Congress would not be regulating you, merely what could be made and sold in the markets. You would still be free to wear your “Born To Be Conservative” T shirt – if you could make it yourself. (Of course, making such a shirt might expose you to charges of misappropriation of resources.)

But the most frightening implication remains. Commerce cannot exist without consumers, which opens the door to regulation of the market IN consumers. After all, the number, type, health, intelligence, etc of consumers directly effect the demands on the market, and so effect commerce.
The logical conclusion is chilling. Too old or too sick. Go home and take this pill. It will be painless.
Will your unborn child be born “defective”? This way to the abortion booth. (By the way, who would decide what constitutes a “defect”?) Bad genes? For example, are you prone to heart disease? Your sex license is suspended until you submit to sterilization. Good genes? Congratulations – have you met your reproductive quota?


What is more integral to “commerce” than consumers?

Feminists might argue that some level of reproductive rights are protected by Roe v. Wade. Perhaps.

The term “reproductive rights” does not appear in the Constitution. Indeed Roe rests on a right found to exist in the “penumbra” of the Constitution. It would be a poor lawyer indeed who could not dispel the Roe “penumbra” with the express authority of the Commerce Clause. As Representative Pete Stark recently said “The Federal government can do most anything” in America.
Therein lies the greatest danger of the liberal utopia. A society in which the evils of Big Business have been vanquished and everyone has been protected against all harm – including their own poor decisions – is necessarily a society in which everyone is free to do whatever they are told.

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