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The Founders couldn’t have imagined a world where millions of lives are saved by cardiac surgery and chemotherapy. Nor could they have imagined an America where close to 45,000 people die each year because they lack health insurance, as documented in a 2009 Harvard Medical School study. Considering that all five conservative justices are devout Catholics outspokenly devoted to the right to life, the stakes in this case might lead at least some toward the more expansive reading of the commerce clause.
The ambiguity of the commerce clause has long made it a nifty hook for letting the federal government do all sorts of things the Founders hadn’t thought of. As liberal Justice John Paul Stevens wrote in the 2005 marijuana ruling, the commerce power has been expanding steadily since the 1880s to cope with “rapid industrial development and an increasingly interdependent national economy.” It’s been used to break up monopolies, pave highways, outlaw unsafe toys and, most famously, prohibit racial segregation in businesses that serve the public.
What it’s never done, to hear Obamacare opponents tell it, is force anyone to do something they weren’t doing. Not participating in commerce — not buying insurance, for instance — isn’t an act of commerce and can’t be regulated, they say.
This would come as a surprise to thousands of railroad and airline workers who’ve been forced to go to work when they wanted to stay out on strike over the decades since the 1926 Railway Labor Act was passed. Chief Justice Warren Burger usefully explained in his 1982 United Transportation Union v. Long Island Rail Road Co. decision how the commerce clause can make people do things they don’t want to do. Ronald Reagan offered a live demonstration a year earlier when he fired 11,000 striking air traffic controllers. You didn’t hear a lot of conservatives complaining back then.
Since then, though, an increasingly conservative court has been steadily gutting the commerce clause, insisting on the Constitution’s “original intent.” Among other things, it’s struck down laws banning handguns in schools and letting rape victims sue their attackers — both in 5-4 decisions.
Expecting otherwise this time might be a triumph of hope over experience, to quote Dr. Johnson again. This is a court that decided 5-4 to stop counting votes in 2000 and make George W. Bush president. That decided 5-4 in Citizens United to quash a century-old ban on corporate campaign spending. It’s a court led by movement conservatives, not judicial ones.
Escape clauses like interstate commerce are an ancient judicial tool for overriding Founders’ original intentions. Even God wasn’t exempt; the sages of the Talmud told Him directly that his intent wasn’t binding because once he gave the Torah to humankind it was, quoting (or deliberately misquoting) Deuteronomy 30:12, “not in heaven.” And yes, they used it to rewrite numerous troubling biblical laws, from executing rebellious children to amputating errant hands, eyes and teeth. Alas, that sort of flexibility is as scarce these days in rabbinic courts as federal ones. Maybe they’ve been putting something in those black cloaks.
Contact J.J. Goldberg at firstname.lastname@example.org