Issue #23, Winter 2012

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.

Issue #23, Winter 2012
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Larry Jorgensen:

I am fearful of our country's future. I do not agree that corporations are individual citizens with all the rights accruing to a flesh and blood US citizen. Corporations are a group of individuals banded together in a common commercial enterprise. A corporation cannot vote in an election, why then, should a corporation have the right to influence elections by virtue of tremendous wealth. Isn't that the same as unregulated lobbying?

Dec 13, 2011, 2:16 PM
Kirk Michael:

I am hopeful for our country's future. I have seen that the special interest groups like labor unions which used to have special power over other special interest groups now have come to to play in the planefield as others.

Dec 13, 2011, 3:26 PM
Renee Marie Jones:

"... the voices that best represent the most significant segments of the economy." is a very telling phrase. The Supreme Court asserts that corporations are a "better" voice than their workers and that corporations are "more significant" than their workers.

It is very sad to live in a society dominated by such ideologically mindless, brainwashed, and greed-driven people.

Dec 13, 2011, 5:48 PM

How soon before the Supreme Court legalizes outright bribery? After all, the fact that I can't buy off politicians and building inspectors is an infringement on my liberty. And of course, the poor and rich equally will have the right to purchase the attention of public officials.


Dec 13, 2011, 8:59 PM

I just wanted you to know that this is one of the best articles I have ever read. It is just outstanding. Thank you for articulating thoughts I have struggled with for years.

Dec 14, 2011, 3:49 AM
Ben Meyer:

There is much going on right now that really makes one consider whether the US is still holding true to its values, more specifically those outlined by the Constitution itself. The vast majority of this has sprouted from the overreaching of Congress over the last 100 years - reaching into the rights and liberties of the States and Citizenry.

While I agree that some level of regulation is necessary - EPA is constitutional since environments of one state do affect that of another thereby de minimis the commerce clause could apply, for example; Congress has often overstepped its boundary from Copyright (DMCA), to now Health Care (individual mandate), and many other ways.

And while you are suggesting that much of the weight of wealth and such is being tossed around due to results of SCOTUS, there is much more being tossed around due to the overbearing and overreaching laws passed by Congress itself.

The Constitution is a wonderful piece of work, and any power/right not explicitly granted to the Federal government is thereby reserved for the States and the people. This means that higher levels of government have more restrictions than lower levels of government in what they can do to control the lower levels of government. And since the States by extension have to have a State Constitution that mirrors the Federal Constitution, this same principle bears the same relationship from State to local governments and the people as well.

However, over the last 100 years Congress has done more and more to pull more power towards the Federal government - from pork barrelling special projects to withholding matching funds for Congressionally mandated work when States do not do as Congress wants. (That in itself should be illegal under the Constitution as Congress is in effect bribing the States to give up power and rights.)

We see this again in the DMCA which not only extends Copyright again - such that is it now well beyond the life of even the author's children and perhaps grandchildren - but makes it easier for corporations to shutdown economic activity as illegal when it would otherwise be legal - e.g. putting a weak 'protection' on copying - thereby forbidding otherwise legal activities (e.g. archiving, changing of storage mediums, etc.) in favor of corporate interests.

And no, the ACA does not resolve the health care issues - it just panders more to large corporations. Reform would be requiring insurance companies to pay out based on the service provided, paying out what the doctor specified, and not allowing them to be able to challenge the doctor so long as the doctor acted within the boundaries of their field. Instead, we have more insurance - more paperwork, and more bureaucracy - all of which means that doctor's will have to charge more to cover the administrative costs, and individuals and companies will have to pay more to cover the same insurance since they are now mandated (illegally) to have insurance.

True health care reform would not require individuals to have insurance, but actually accomplish lowering the costs. ACA does not do that for numerous reasons.

SOPA/ProtectIP currently before the Congress are in similar scenarios - pandering to corporate interests at the expense of the people, codifying it in Federal law. One provision would make some actions that were civil issues under the DMCA criminal issues; others essentially allow corporations to wiretap you without any due process.

It will also be interesting to see how SCOTUS rules on immigration. The Federal Government as designed does not have enough power to enforce all the laws it sets out; thereby it needs to work with state and local communities to enforce all laws. As a result all levels of government have the responsibility for upholding the laws of its locality and that of above it. However, the President is presently refusing to enforce some laws and prohibiting localities from doing so as well, claiming only the Federal government has the authority to uphold federal laws, though that is not the case.

True reform will not be possible under Congress stops pandering to corporate interests, and the courts uphold a Federal government of limited powers.

Dec 14, 2011, 12:52 PM

The problem with the critique of the "free market" is that such critique lacks an alternative. It is still the best method of allocating scarce resources.

Every alternative requires some other actor deciding how resources are allocated, and these actors are seldom objective.

Dec 15, 2011, 12:29 AM

For material goods, the free market works.

But for immaterial goods, things are a lot different. Copyright protected works are not 'scarce'. The internet and computers reduce the price for copying these works to the point where giving one person a copy of the work is just as expensive as giving it to everyone in the whole world.

Yet, the neocapitalist viewpoint is that since we CAN attempt to treat these works like property, we "SHOULD". When all the evidence so far seems to indicate that this model is far from the best we can do, if not downright counterproductive.

What this article points out is the fact that the government is in the business of regulating power. More precisely: Preventing and mitigating inequalities in the balance of power. That Freedom, and Finance, are both forms of Power, and need to be balanced against each other, is a fine point that very few people appear to appreciate.

Jan 9, 2012, 6:40 AM
Charles Broming:

I am refreshed by the author's use of history to develop a perspective that is broad and deep enough to provide a lens sufficiently wide-angle to enable us to see the developing pattern of this court's rulings during the prior three decades. The Gilded Age and the Roaring Twenties provide an excellent paradigm for the economic and political conditions that have driven the current SCOTUS's judicial activism since the first Reagan appointees. The irony of this is hilarious, yet, frightening. The Lochner decision and the Courts between 1870 (roughly) and 1936 were activist assaults on the legacy of the Marshall Court. Are we ready for another 20 or 30 years of this trend? I'm not.

Apr 4, 2012, 4:31 PM

If one takes the ultra right idea to its full extent, we end up with those that earn $200K or more and better than anyone below that level. If corporations wish to hire their workers for a $1 an hour, so be it. Those who refuse to work at that rate can live in the streets or the hills, or die of starvation. After all they could have taken the job for $1 per hour but didn't. If there are too many people and some die, so be it--or so they seem to think. After all they got theirs by working hard. Luck or position never had anything to do with it. Just ask Justice Thomas!!! We're going back further than the Gilded age--more like the Medieval ages with lords and slaves--of various caliber. I'm glad I won't live to see it all happen.

Apr 4, 2012, 6:20 PM
Marvin H. Gladstone:

Mr. Dooley is credited with the prescient observation that (notwithstanding its members are appointed and enjoy life tenure) "the Supreme Court watches the election returns."

Apr 4, 2012, 6:34 PM

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