The Roberts Court v. America
How the Roberts Supreme Court is using the First Amendment to craft a radical, free-market jurisprudence.
These changes in the First Amendment’s meaning track larger changes in the political and intellectual tone of the time. They put new intellectual premises to work in constitutional law, premises that themselves form no part of the Constitution. For one, this neo-Lochner-ism takes plausibility from the background idea that the distinction between politics and markets, or principles and interests, is spurious: A democratically adopted policy is just the aggregation of some people’s interests, and a company’s economic interests make as worthy a basis for political argument as any principle. For another, there is no publicly acceptable measure of value except what people say they want and are willing to pay for: preferences, that is, backed by cash. Any attempt to establish an independent standard, such as fairness or cultural excellence, is elitist, parochial, or a try at petty tyranny. For a third, markets are the best way by far of capturing and maximizing this uniquely valid type of value: Therefore, elections and other institutions should come to resemble markets as much as possible. The one incontrovertibly valuable kind of freedom, then, is freedom that makes markets work. It is in this market-fixated climate that courts can declare that spending is speech, advertisement is argument, and the transfer of marketing data is a core concern of the First Amendment.
These ideas are to our time what classical laissez-faire and social Darwinism were to the age of Lochner. As the rise of industrial capitalism and a vast population of wage laborers made freedom of contract pervasively relevant at the turn of the last century, today an economy built on consumption and information makes the First Amendment a natural vehicle to constitutionalize transactions at the core of the market. Much of what happens in the American economy is, after all, some hybrid of marketing and information transfer. Products, images, information, ideas, and advertising are increasingly aspects of a single economic process.
For all these reasons, the First Amendment has helped the Supreme Court do for the consumer capitalism of the Information Age what freedom of contract did for the Industrial Age: constitutionally protect certain transactions that lie at the core of the economy. This makes unequal economic power much harder for democratic lawmaking to reach, because there are only a few ways to reduce the effects of economic inequality: redistribute wealth, guarantee certain goods (such as education or health care) regardless of wealth, and limit what the wealthy can do with their money. Constitutional protection of marketing and spending takes the last option off the table at a time when the other two are politically embattled. Whether in elections or in marketing and the vast data economy behind it, the market itself, with all its inequality, is ever more thoroughly constitutionalized as a realm of freedom.
This development is a milestone in the Court’s march away from a principle that it accepted with the New Deal: Buying and selling enjoy no special constitutional status, and legislatures can regulate markets and businesses to make life more equitable, safe, or healthful. When these policy decisions are opened to constitutional attack, the wealthy interests burdened by legislation can appeal from the political process to the Supreme Court. If they win, they send lawmakers back to square one, and, win or lose, they delay regulation and raise its costs. Moreover, these cases give wealthy interests a rhetorical leg up: They can denounce regulation as “censorship” with the Supreme Court and the Constitution behind them.
Health-Care Reform and Nanny-State Hysteria
Nominally, the courts that have found some or all of the Affordable Care Act (ACA) unconstitutional are ruling on the limits of Congress’s authority to regulate the economy. Near the heart of these opinions, though, is the idea that the Constitution must protect, even indirectly, the autonomy of the consumer deciding how to spend her money. Although this is a very weak constitutional argument, it is revealing: It shows that the judiciary’s turn against a law that would have been uncontroversial not long ago is part of the intellectual taste for a laissez-faire consumer capitalism.
The federal courts’ sharply divided judgments on the constitutionality of health-care reform, and the dawning realization that the Supreme Court will likely take the constitutional challenge seriously, make this a strange moment, and one that might be momentous. The argument against the ACA that two federal district courts and one appeals court have accepted at the time of writing is that Congress lacks power to require individuals to buy insurance—the so-called “individual mandate” that is designed to put young and old, healthy and sick alike into the insurance pool. The Constitution assigns Congress a limited set of powers, and, in theory, it cannot act outside those. Therefore, Congress always faces two sets of constraints. It cannot do some things because those things are forbidden by rights-protecting language like the First Amendment, and others because, although they are not prohibited, they are not authorized by the Constitution’s list of Congress’s powers. The ACA’s opponents argue that the individual mandate violates the latter principle.
Congress’s go-to power for 70 years, since the Supreme Court embraced the New Deal, has been the power “to regulate commerce…among the several states,” generally just called the Commerce Clause. Although the bare language would seem to support a narrow reading of the power, the Court has interpreted it to authorize nearly any legislation that touches on economic activity, even very tenuously, such as the federal ban on home production of medical marijuana for personal use (in 2007’s Raich v. Gonzales). But on the ACA, three federal courts have pleased conservative activists by holding that Congress cannot require people to buy insurance. The general principle of these cases is that the Commerce power does not authorize Congress to require people to make purchases, or perhaps to take any affirmative act at all, in a field of economic life that they have not already voluntarily joined. Become a farmer, the argument goes, and you may be subject to all kinds of regulations, quotas, and so forth. The initial choice to enter the field means taking on its regulatory burdens. But a passive citizen, just by being, has done nothing to subject herself to the insurance mandate. Once she enters the field of health-care consumption, courts have conceded, she could be required to buy insurance; but as long as, like Winnie-the-Pooh, she just is, Congress cannot reach her.
This argument is strange, notwithstanding that federal judges have signed on to it. Strictly speaking, it addresses the limits of federal power. Nonetheless, its rhetorical force comes from appeals to the autonomy of the consumer and warnings that a runaway Congress might violate that autonomy. Courts overturning the individual mandate invariably invoke dark fantasies of a paternalistic government requiring citizens to buy American cars, health-club memberships, or vegetables. What’s strange about this parade of nanny-state specters is that, because the Commerce Clause concerns the powers of Congress, not the rights of individuals, a ruling that invalidates the individual mandate under the Commerce Clause simply means that only state governments, not the federal government, can pass such a law. Famously, Massachusetts has already done just that.
There is really no such thing as a constitutionally protected personal liberty that a state can violate but the federal government cannot, or vice versa. The Constitution protects individual rights against all government action, regardless of the source (with a handful of minor exceptions that are not relevant here). The Commerce Clause governs federal but not state power because it is not a rights-protecting clause. The odd thing about the anti-ACA cases is that they proceed as if they were vindicating a constitutional right of consumer liberty, but the Constitution has not been interpreted as securing economic rights since the Supreme Court rejected Lochner. Opponents’ Commerce Clause arguments are displaced Lochner-ism.
That the constitutional case against the ACA is eccentric doesn’t mean that it is silly or sure to fail. In fact, the Lochner era had its own restrictive vision of the Commerce Clause, which the Supreme Court used to strike down federal laws regulating workplace conditions (such as bans on child labor). Like today’s anti-ACA courts warning against mandatory vegetable-buying, courts applying this older view of the Commerce Clause showed their real motives by remarking, for instance, that if Congress could regulate child labor, “all freedom of commerce will be at an end.” But where Lochner jurisprudence embraced a picture of economic liberty that centered on the autonomous producer (the worker bargaining with his employer), today’s emerging theory concentrates on the autonomous consumer. As with much of the new First Amendment doctrine, the basic protected act is the decision about how to spend one’s own money.
There is, too, a trace of Tea Party paranoia in the anti-ACA opinions’ image of a Congress that barely passed the ACA after decades of failed attempts, and cannot bring itself to raise taxes in a time of fiscal crisis, suddenly deciding that micromanaging its constituents’ grocery lists is a good idea. Laws requiring the purchase of broccoli might be bad, but they would also be unpopular, and that is all the protection we need against them. Looking in the Constitution for a guarantee against every silly or pernicious law a person can dream up distorts the document. The less one trusts the political process, though, the greater the tendency to look to the Constitution for protection by a higher law. The political right’s assault on government and caricature of Washington as a tyrannical power lend force to extravagant constitutional theories aimed at staving off a ravening Congress—an especially grim irony at a time when Tea Party representatives hold Congress hostage. This blend of doctrinal mutation and political unreality is where the laissez-faire intellectual climate of neo-Lochner-ism and the political climate of enraged populism come together.
A Hollow Freedom
Viewed broadly, the anti-ACA interpretation of Congress’s power has the same logic as the new First Amendment cases and the original Lochner doctrine. On the one hand, it celebrates individual freedom. On the other hand, by “protecting” individual freedom from government interference, it helps to guarantee that the inequality of the private marketplace will persist. Ironically, this often means that the individual freedom at stake—consumer choice, campaign spending, liberty of contract—is less worth having. Up close, the individual choice—buy, sell, hold—is unburdened by regulation; but pull back the camera, and you realize that the free choice is among a set of options that regulation helps to define—or does not, if the Constitution prevents it. In 1905, the unregulated choice to work more than ten hours a day in a bakery might have been free up close, but in a broader focus labor-market regulation was aimed at giving workers more attractive choices. Today, the uninsured face miserable, often impossible choices on the health-care market—just what the ACA is designed to change—which makes the courts’ invocation of consumer autonomy in striking down the ACA a particularly bitter irony. The freedom to spend money in a political campaign with Exxon on the other side may not feel so inspiring to those citizens who live elsewhere than on the pages of the Supreme Court’s opinions. Of course, the choice to spend or not spend is a form of freedom, and regulation burdens that freedom; but until recently the American understanding has been that this is not a constitutional freedom, because legislatures’ power to regulate markets and compensate for economic inequality is too important to subject to probing judicial review. A constitutional right to spend what you do not have or to decline to buy what you cannot afford recalls Anatole France’s mordant remark that the law, in its majesty, equally forbids rich and poor alike to sleep under bridges and steal bread for their dinner.
If the anti-ACA argument succeeds at the Supreme Court, it will be a sharp departure from the Court’s practice in the twentieth century. It is nearly unimaginable that any Court between the New Deal and now would have invalidated a national program of economic regulation, aimed at securing basic social benefits to all, that violates no constitutionally recognized individual rights. What is less clear is whether such an opinion would be a sea change, the start of a libertarian-inflected approach to the Commerce Clause, or just an important (and highly political) aberration. On one level, it doesn’t matter much: It took decades and much of the Obama Administration’s political lifeblood to pass the ACA, and nothing comparable seems likely to happen soon. But like Bush v. Gore, the shameful case in which the Supreme Court effectively settled the 2000 presidential election, the stakes in health-care reform are big enough that a one-time-only theory would have enormous consequences for the country. A one-off opinion setting aside the ACA would reflect the political and judicial mood of the time. The idea that consumer sovereignty is a constitutionally protected value, that purchasing decisions are sacrosanct, involves the leveling of personal and political life into market decisions. That this idea infuses the anti-ACA opinions and gives them their rhetorical and (to their supporters) moral force shows how central it has become to the libertarian strain of legal reasoning.
There is acute irony in the way the new anti-regulatory cases interact with the Republican agenda in Congress. No one doubts that health-care reform would be constitutional on a single-payer, Medicare-like model, with the government simply providing tax-funded insurance. Such traditional liberal programs, though, have been driven off the field by decades of right-wing success. The ACA is an intellectual compromise with market thinking and a political compromise with the big insurance companies. That is why, instead of just providing insurance as a public benefit the way many developed countries do, it requires individuals to purchase it from the company of their choice, keeping markets and established corporate players in the game. And that, in turn, is why it is constitutionally vulnerable. The ACA’s opponents call the individual mandate an unprecedented exercise of government power. It may be that, but not because it is a triumph of American “socialism”: It is novel because Democrats used to be able to pass public benefits that were straightforwardly public, rather than channeled through markets regulated favorably to big companies.
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