One of the stranger legacies of modern “constitutional law” is the separation of liberty concepts and government-structure concepts—that is, the notion that we can speak on one hand of arguments about federal authority, and on the other about the rights that are protected in the Bill of Rights or other constitutional provisions. This was not a feature of founding-era thought about the Constitution, nor of nineteenth century jurisprudence. They realized that liberty is, so to speak, the sea in which islands of government power are planted—individual freedom is the default rule, and it is protected by the limits on government power. As Madison wrote, “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty.”
But Progressivist legal thinking—which came to dominate the legal academy and courtrooms in the New Deal—reverses this order. It holds that rights are permissions or privileges given to individuals by the state, or by constitutional fiat, in the Bill of Rights. Thus if an asserted right cannot be traced to some provision of the Constitution, it doesn’t really exist, and government make take over that realm of choice as it sees fit.
An increasingly common example of this sort of thinking is the argument made by supporters of the Individual Mandate provision of Obamacare. In their eyes, opponents of the Mandate are missing the point when they argue that the Commerce Clause should be construed narrowly so as to avoid intruding on individual liberty, because individual liberty isn’t a part of the Commerce Clause—it’s a part of, e.g., the Due Process Clause. So, for example, Prof. Ian Bartrum writes at ProfsLawBlog that “all the chatter about the feds making us eat broccoli or buy particular cars is best seen not as federalism problem, but as a substantive due process problem. People just don’t think that’s the kind of thing any government should do.”
Of course, it’s true that that is not the sort of thing any government should do, but the Constitution makes no distinction between the limits on federal authority on one hand and the individual rights protected from government intervention on the other. As the Court recently reminded us in Bond v. United States, the limits on federal power exist in order to protect the indefinite range of individual freedom with which we are endowed by nature. Liberty is an undefinable realm of free individual choice—it does not come in discrete quanta, and cannot be reduced to a list of particular individual rights. On the contrary, the Constitution was written on the understanding that individuals have freedom to act however they please, within the rights of others, except where the government is specifically vested with power to override their freedom of action. Thus people can engage in commerce however they want, except where the Commerce Clause or other provisions give Congress the power to intrude. There is no more space between individual freedom and the powers of Congress than there is between the beach and the ocean’s waves. If this point were not clear enough from the rest of the Constitution or the founders’ writings, it is clear from the Ninth and Tenth Amendments, which together make clear that where Congress lacks power to intrude, the individual is free to act, or the states to legislate.
It is true, of course, that to be constitutional, the Individual Mandate must not only fall within Congress’ power under the Commerce Clause, but also must satisfy the Due Process Clause—a broader inquiry, which questions whether, in addition to “regulating” “commerce between the states,” the Mandate also satisfies broader requirements of lawfulness and is therefore not arbitrary or unauthorized. But this inquiry is not cleanly separated from the Commerce Clause question. On the contrary, if the Mandate does not qualify as a “regulation” and if the failure to buy insurance is not “commerce”—as Prof. Bartrum appears to concede—then the reason why the Mandate fails is precisely because it deprives the plaintiffs of liberty or property without due process of law—i.e., because it is not then a “law” which Congress may make.
The Supreme Court has warned us many times not to think of federalism and individual rights as distinct issues. “Federalism,” wrote Justice Kennedy in Bond,
is more than an exercise in setting the boundary between different institutions of government…. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power…. Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States. Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The bottom line is that liberty concerns simply must be a part of our analysis of the meaning of the Commerce Clause. Linguistic or economic factors cannot be considered in isolation when interpreting that Clause; rather, we must consider the consequences that competing interpretations would have on the constitutional system of limited powers and protections for individual liberty.
Finally, note Prof. Bartrum’s odd conclusion. After contending that the challenge to the Individual Mandate is a question about whether that Mandate complies with the constitutional guarantee that government won’t take away liberty without due process of law, he concludes that “if you don’t want to have to eat broccoli or buy a Ford,” you have to turn to “the ballot box.” But constitutional guarantees aren’t supposed to be left up to the ballot box. As Justice Robert Jackson wrote, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” True, Progressive jurisprudence does leave large portions of our constitutionally promised liberty to be violated at the whim of political popularity, by depriving rights like freedom of contract or private property of the judicial protection to which the Constitution’s text entitles them. But as Jackson’s words suggest, this is an abuse, not the natural order of things in a nation that has pledged itself to a Constitution of limited, enumerated powers.