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Saturday, April 7, 2012

Supreme Court Ground Hog Day

One of my favorite movies is the Bill Murray classic "Ground Hog Day" where he plays a reporter covering the activities on Punxsutawney Phil in Punxsutawney, Pennsylvania on Ground Hog Day. He finds himself waking up again and again on the same morning of February 2 (Ground Hog Day), forced to relive this day until he "gets it right". Ultimately, he succeeds in doing so but not before he has more than a few stumbles.

Like much of the US populace, I have been an earnest observer of the health care law debate and most recently, the landmark case which has just been argued in the US Supreme Court. I have taken this opportunity to pull out my Teaching Company courses on Civil Liberties and the Bill of Rights (Professor John E. Finn) and The History of the Supreme Court (Professor Peter Irons). They should be required ready (or listening) for all the talking heads and pundits who pretend to speak with authority on the subject.

My perspectives on the current controversy are the following. First, this is not a debate about health care.  I cannot help but see the debate on the current health care law as fitting in to a long standing debate on the role and extent of the Federal government power. For those who are convinced that we are dealing with settled law and the "right answer" is obvious, they are obviously ignorant of history and closed minded. Since the founding of the Republic, there have been tensions between state and Federal governments and between the various branches of the Federal government. Those tensions are an essential element of why our system which relies of division of power and checks and balances works as well as it does. Where some see conflict and gridlock, I see appropriate control of state power. It may serve as an impediment to getting certain things done, both constructive and destructive.

In listening to the Teaching Company course, I could not help but see parallels between the current controversy and Supreme Court cases which go back over one hundred years. In multiple Supreme Court cases which were extremely contentious at the time, the recurrent themes revolved around the role of the Court as a final arbiter of decisions made by state and federal legislatures to regulate commercial activities.

Late in the 19th century, the Supreme Court decided in the case of Munn v. Illinois where they upheld a state law setting maximum rates for grain storage by a Chicago company. This decision broke precedent from earlier Courts in that it upheld the power of state legislatures to regulate private contract and was denounced as being subversive of the rights of private property. While our current perspective may be that this was nothing unusual, we perhaps have lost perspective on how private property has historically been viewed as being essential to liberty. Ultimately, concepts revolving around private property and freedom of contract are central to the health care law debate.
"No other rights are safe where property is not safe." -- Daniel Webster 
The Munn case actually served as the impetus for the formation of the American Bar Association, whose original raison d'etre was to get the Munn decision reversed. This was ultimately accomplished shortly after the turn of the century with the famous (infamous) Lochner v. State of New York. In this case the State of New York passed a law limiting the hours of  bakers. This was challenged by a baker in Utica New York who claimed that the state law violated his 14th amendment rights, primarily what was interpreted as liberty to contract with others. Ultimately the Lochner decision became a rallying point for the progressive movement and the definition of inappropriate judicial activity among academic legal circles and has been linked to other decisions such as Plessy v. Ferguson.

However,  George Mason University law professor and legal scholar scholar David Bernstein (who actually has published peer reviewed material unlike other so-called legal scholars)  has recently written a book re-analyzing Lochner and providing evidence that it served as the foundation for limiting egregious state laws such as Jim Crow laws and xenophobic, anti-immigrant statutes. As noted by Damaon Root in his piece in Reason Magazine:

The true origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied relentlessly in favor of the law, and their nonunionized, mostly Jewish and Italian immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. “A ten-hour day would not only aid those unionized bakeries who had not successfully demanded that their hours be reduced,” Bernstein observes, “but would also drive out of business many old-fashioned bakeries that depended on flexible labor schedules.” The large corporate bakeries joined the union in supporting the Bakeshop Act. After all, it was in their economic interest to favor regulations that crippled the competition......
Drawing on both previous legal scholarship and his own extensive historical research, Bernstein offers a definitive account of this misunderstood and unjustly maligned case. Not only did Lochner represent the victory of small-scale producers over large, politically connected special interests, Bernstein points out, but the ruling led directly to several of the Supreme Court’s most important early decisions in favor of civil rights and civil liberties under the 14th Amendment, including Buchanan v. Warley, the landmark 1917 case in which the National Association for the Advancement of Colored People scored its first victory before the Supreme Court. If anyone consistently sided with the powerful against the powerless, it was Lochner’s Progressive Era critics. Progressive legal activists didn’t just take a dim view of individual rights under the Constitution. They typically supported state action in all of its vilest forms, including Jim Crow laws and anti-immigrant laws.....
In 1919 the state of Nebraska passed a law banning both public and private school teachers from instructing young children in a foreign language. As Bernstein explains, the ban was popular with more than just the local nativists. “Banning or heavily regulating private schools was also supported by many Progressives,” he notes, “who thought public schools essential in winning the citizenry’s loyalty to an increasingly activist state.”Thankfully the Supreme Court saw things differently. In a sweepingly libertarian opinion that relied on Lochner’s broad defense of individual rights, conservative Justice James C. McReynolds held that the 14th Amendment’s Due Process Clause secured the right of private school teacher Robert Meyer to earn a living by teaching in his native language of German. Furthermore, McReynolds wrote in the 1923 case Meyer v. Nebraska, liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children,” and “to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 

Many of the Lochner precedents were reversed in an aftermath of the New Deal and FDR's strong arming of the Court. Dr. Iron's discussed the events revolving around what was referred to as the "Four Horseman of Reaction", although I believe his handling of this discussion could have been more even handed. Whether FDR's actions actually swayed the Court or whether they had already changed their minds prior to the announcement of  his Court packing plan is debated to this day. With the transition to a Progressive agenda on the High Court, the central importance of private property and contract  waned, being replaced by more emphasis on other rights (speech, privacy). This trend has continued and the current health care law debate is a logical point given the history. The importance placed on legal protection of private property and contract has waned and the decision in front of the Court now is perfectly logical if one 's perspective is that this trend needs to continue. If one's perspective is that property and contract are essential pillars in the protection of liberty, then considerations other than protection of liberty are of secondary importance. The point is the major contention is not about health care per se.

Even now, the right and the left trade barbs, accusing justices of failing to follow long standing precedent and/or practicing judicial activism. What one side views as inviolable precedent is viewed by their opponents historical mistakes which cry out to be fixed. Where one side views Lochner as an example of the Court inserting personal opinion regarding property and economic justified no explicit written tenants within the Constitution, that same group has no problems with finding rights of privacy justified by Penumbras and emanations in Griswold vs Connecticut. In political battles principles and consistency are really not an asset. The ends justify the means. From the perspective of proponents of the mandate, they pose the question as to how are we to accomplish the Utopia of Universal Health care if we continue to be hamstrung with archaic limitations on state action based upon liberty rights, private property, and freedom of contract?

The parallels between the divided makeup of the Court now and in the mid-1930's is eery. I am actually surprised that  I have not heard any similar slogans portraying Justices Alito, Roberts, Thomas, and Scalia  as the new four horseman of reaction. If the health care mandate is found to be unconstitutional, I am sure that this will surface in the Presidential campaign. Mr. Obama will redoubtably stop channeling the Republican Lincoln and begin to channel the Democratic FDR. 

What does this all mean and how are we to interpret the current events within the context of these historical events? In my humble opinion what this means is that health care is not different. The overarching concerns which are relevant to health care law and the delivery of health care are ultimately governed by principles no different from the concerns which were relevant to Munn or Lochner or any number of other important Court decisions which impacted law and economic activity in general.  My view of the court is that is should be both very powerful and very limited. It is powerful in that it can over rule other branches of government on the basis of constitutionality. It is very limited in that it cannot initiate legislation and it actions are limited by the Supreme Law of the US; what is written in the US Constitution.  If the Congress can make a law which compels citizens to enter in contractual agreements in health care which they they do not want, it means that Congress can compel citizens to enter in any contractual agreement in any economic realm. I simply cannot see that this will be a good thing.

This is not about health care. It is about how much we limit state power, even if it potentially affects the ability of the Federal Government to take action to address individual difficult and complex problems which affect citizens of the US. If the Supreme Court becomes engulfed in micromanagement issues, the game is over.

  • We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may prevent its use for desirable purposes. Friedrich Hayek - The Road to Serfdom

No worry, however.  I am the eternal optimist. Like Bill Murray, we will wake to the sounds of "I got you babe", get out of bed, and do it over and over again until we get it right. It may take a while.

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