About 16 years ago I was doing a lecture at the Supreme Court Historical Society on the constitutionality of the New Deal. The lectures were taking place in the courtroom of the U.S. Supreme Court, and the Chief Justice at the time, William Rehnquist, was kind enough to introduce me. But Rehnquist seemed to light up when I did a riff on that famous case of Wickard v. Filburn, which has drawn our fascination yet again in the arguments over Obamacare. The case had arisen because Roscoe Filburn, a farmer in Ohio, had been putting aside a portion of the wheat on his farm for the consumption of his own family. Robert Jackson, the most urbane of justices, "explained" that this action, innocent enough, may have little consequence, but if everyone did that, there would be a vast aggregate effect that would have the most notable impact on the federal policy in managing agriculture. That argument would be used later in sustaining the Civil Rights Act of 1964 (in Katzenbach v. McClung): if black people were being refused service at inns and restaurants as they sought to travel across the States, they would be discouraged from traveling; if they were discouraged from traveling, there would be less business overall; and if there were no business, there would be fewer orders for meat, linens, silverware, and a cascading array of goods. And so under the formulas of the Commerce Clause, what was the wrong of discriminating against black people? Answer: it would seriously depress the volume of trade and the movement then of meat and other products in interstate commerce.
But Wickard v. Filburn came into play yet again in 2005 in the Raich case, as California sought to permit people to grow marijuana on private plots for their own medical uses. This time it would be Justice Scalia drawing on the reasoning of Justice Jackson, and confirming that the conservative judges would respect the doctrines settled in the law at the time of the New Deal: As Scalia argued, people might indeed be growing marijuana for their own use, but if the market heated up in marijuana, all of these private plots could become cottage factories for the market in marijuana. As the Wickard case came into play, it would work to preserve the federal primacy in regulating controlled substances in the same way that it had worked to sustain the federal control of wheat grown for families on private farms.
I remarked in my lecture at the Court years ago that the conservatives had sought and failed for years to talk liberals out of this extended reach of the Commerce Clause; and yet we find jurists willing to overthrow the doctrines of a lifetime when they collide with that vaunted "right to abortion," which seems to have taken, for some of our people, the place of a first freedom, the anchoring principle of personal freedom under the Constitution. But this is where I drew the light in the eye the Chief Justice. Drawing on the formula of Wickard, I offered this construction: that singular, private abortion may be yours and yours alone, but when it is taken together to form an aggregate of 1.3-1.5 million abortions every year, it is having the most pronounced effect on the interstate market for baby food, diapers, bassinets, tuitions in schools, weddings, to say nothing of 1.3 million new taxpayers coming on every year to help fund Social Security and Medicare.
I'd submit to a candid world that this argument fits not only plausibly, but compellingly, under the frame of the arguments we've heard under the Commerce Clause and Wickard v. Filburn. But of course we know that this argument would not stand a chance of succeeding. For we could speculate with high surety as what our friend Laurence Tribe, at Harvard, would say when faced with this kind of an argument: namely, that the policy that restricts abortion would run counter to a principle that must be firmly embedded in the logic of the Constitution as nearly a first principle of personal freedom. My hunch is that he would offer an argument then that transcends the argument moving in the familiar grooves of the Commerce Clause. But that is exactly the kind of argument I was urging over Obamcare in the December issue of First Things ("Natural Rights and Obamacare"). I argued for breaking away from the grooves of this argument over the Commerce Clause and moving in the same way to an argument grounded in the axioms of rights, of natural rights. With the Civil Rights Act of 1964 the government was virtually compelling unwilling vendors to enter into commerce with people of another race with whom they had no wish for commerce. Set against that landmark and the accretions of the past 70 years, it was no longer so momentous to say that the government, under Obamacare, would be forcing us-gasp-to buy a product, medical insurance.
The novelty here would be to break away altogether from the cast of argument within the Commerce Clause and make the kind of argument that would be novel precisely because it is old: an appeal to the deeper principles of natural right that lie behind the Constitution. As it happens, just as I was at work on this essay, a discussion on C-Span confirmed the inclination of the liberal side to make the kind of argument that I had been imputing, with conjecture, to Laurence Tribe. Four accomplished lawyers were gathered for a discussion of the constitutionality of Obamacare. Two of them were certain to be arguing before the Supreme Court. Neal Katyal, the former Acting Solicitor General in the Obama Administration, responded to the challenge now repeated in the lower courts: that in the name of promoting national health, why couldn't the government create a mandate for people to buy electric cars or broccoli? Kaytal picked up on the matter of broccoli: He remarked that there were issues of the Bill of Rights or principles of "privacy" that would argue against such a mandate. Of course there was nothing explicitly in the Bill of Rights that came into play; he was appealing to a principle of privacy or personal freedom, which he evidently regarded as one of the deep principles in the law. In other words, he too moved decisively out of the cast of the Commerce Clause in making his argument. The path is so clear that it seems to beckon liberal lawyers. Surely one of the mysteries here is why conservatives have cultivated an aversion to appealing to those deeper principles of natural right; the principles that marked, for the Founders, the rationale of the Constitution, for they marked the very rights that the Constitution was brought forth to protect.
With the turn of the New Deal the Court had sustained the power of the government to compel private businessmen to deal with unions they had no interest in bringing into the management of their business. Justice James McReynolds showed at the time what was so specious in the arguments accepted by the Court. Those "arguments" were merely speculations about the interruptions that might afflict commerce if there were prolonged strikes and conflicts-if unions were not recognized. By that reasoning, as McReynolds said, the government could as well order a lowering of wages if that seemed necessary to keep the firm in business. Or if the stoppage came from a strike, why not simply ban the strike itself?
But McReynolds could have supplied an even clearer argument for his position by drawing on those axioms of freedom that had long underlain the argument against compulsory unions. Professor William Nelson reminded us that those arguments had come in the most compelling form from judges who had come out of the antislavery movement. The most telling sign came when the threads were brought together by Justice John Harlan, the great dissenter in Plessy v. Ferguson. The occasion came in Adair v. U.S. (in 1908), and it began with the premises that rejected slavery: No man was by nature the owner or ruler of other men; a man's labor belonged to himself, as he belonged to himself. And so no man had an obligation to justify himself when he walked off a job, left the employ of any other man. But then, on the other side, the employer was surely no less a human being, no less a natural person, than the worker, with no lesser claim to natural right, and with no lesser claim to his own liberty of association. Workers surely had to be free to form an association with other workers in the same workplace; that right was simply implicit in their standing as free men. And surely they were free to decide that they would not work in any establishment that did not do its hiring solely from the membership of their union. But to say that they had the power now to deny the possibility of work to some other person, not a member of the union, or deny to the employer his own freedom of association, was to back into contradiction. As Harlan explained, the employer had a reciprocal right to his own freedom of association, and that entailed a right to quit his association with any workers who would actually claim the power to deny work to other men and deny to the owner his own freedom of association for a legitimate end.
Now whether these arguments finally convince us in the case at hand, I would simply point out this mode of the argument, made on either side: Lawyers on both the liberal and conservative side are appealing to those deep principles of lawfulness that had to be in place in anything calling itself the rule of law. As Daniel Robinson pointed out, the very notion of establishing a system of law based on first principles, principles that command our respect apart from the positive law, is itself a move of the natural law. The odd part of the story here is that this mode of reasoning about the law is recognized at once by people on the Left and readily used, even when the Left no longer accepts the notion of moral truths, or those anchoring axioms of reason that underlie the natural law. In contrast, the conservatives show a deeper hesitation about engaging in this mode of reasoning, even when it works powerfully for the ends of conservative jurisprudence.
And yet we find Justice Scalia, a premier figure in conservative jurisprudence, often appealing to the logic underlying the law without showing much awareness that he is "doing" natural law. In the recent litigation over Obamacare a fine example of natural law reasoning was offered in the brief of Gregory Katsas from Jones & Day, even though he made no claims to have been arguing in that vein. Katsas invoked an argument made by Justice Washington, but also by Daniel Webster, in the oral argument in the old Dartmouth College case (1819): that to impose on persons a contract they do not want may be quite as bad as impairing the obligation of a contract they had willingly made. Justice Story later remarked that this argument touched one of those deep principles of lawfulness-it was a principle that would be true and binding, even if there were no written Constitution.
But I sought to argue more explicitly in First Things that a tenable argument could indeed be made on the ground of natural right against Obamacare. Past the formulas of the Commerce Clause understood and believed mainly by lawyers, there was something elementary that could be understood by ordinary people and caught crisply by Sarah Palin when she saw in this new scheme the immanence of "death panels": She saw, that is, that any system of national care managed by the government would lead, as it has led in all such systems, to schemes of rationing. One way or another there would be a denial to patients of surgeries and treatment, based on budgets drawn in the aggregate. And the denial would not come from an insurance company, chosen by a customer among several companies, and subject to appeals. The denial would come with the powers of law, from an agency that would have little fear of being corrected from above, by higher authorities. The New York Times reporter, John Burns, remarked that his son, born at the weight of only one pound, would not have been given, in England, the life-sustaining treatment that brought him through in the United States. I know myself people in their 80's on dialysis in this country, a procedure that would be denied them in England. These are not mere "anecdotes," as that term is used so widely and dismissively these days. These are reports on "cases," cases that illuminate the actual working of these systems of administering medical care.
I would bring us back then again to the mode of the argument here, and we might earnestly ask anew: Just why are the conservative jurists so hesitant to engage this mode of reasoning, once so readily recognized by judges, when judges on the left would have not the least hesitation about using it, and when it offers a more coherent account of the law the conservatives would make? One could understand a certain reluctance stemming from the fact that conservatives see arguments drawn from natural law or natural rights working mainly for the arguments of the left because liberal judges have just been more brazen in appealing to principles outside the text of the Constitution. And at the same time, of course, they have been more detached from the discipline of moral reasoning. The plea offered here is that the conservative judges should not turn away from the ground of jurisprudence recognized persistently by the likes of Alexander Hamilton and John Marshall as the ground of their judgments in the law-they should not turn away because that mode of reasoning has been abused by liberal judges. Why would it not be a more dramatic vindication of the Founders and conservative jurisprudence to turn the tables-to invoke again that jurisprudence of natural law, but this time on our side, to get it, again, magnificently right.